USA V. JAIME HERRERA-RAMOS, No. 13-10156 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 30 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 13-10156 D.C. No. 3:12-cr-00054-HDM v. MEMORANDUM* JAIME HERRERA-RAMOS, Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding Submitted December 17, 2013** Before: GOODWIN, WALLACE, and GRABER, Circuit Judges. Jaime Herrera-Ramos appeals from the district court s judgment and challenges the 77-month sentence imposed following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Herrera-Ramos contends that the district court procedurally erred by failing to consider that he lost the opportunity to benefit from a fast-track plea agreement. We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The district court was aware that the government offered a prior, more favorable plea, and the court provided defense counsel with the opportunity to discuss the specific details of the lost fast-track plea offer. Additionally, to the extent Herrera-Ramos contends that the district court failed to recognize its authority to vary from the Guidelines range, the record does not support this contention. Herrera-Ramos also contends that the sentence is substantively unreasonable because it is based on a 16-level enhancement under U.S.S.G. § 2L1.2(b), which lacks any empirical basis and results in a disproportionally high sentence. The district court did not abuse its discretion in imposing Herrera-Ramos s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The bottom-of-the-Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality of the circumstances, including Herrera-Ramos s violent criminal history and cultural assimilation. See id.; see also United States v. RamirezGarcia, 269 F.3d 945, 947-48 (9th Cir. 2001) (recognizing the 16-level 2 13-10156 enhancement reflects Congress s intent to increase penalties for aliens with prior convictions in order to deter others). Finally, Herrera-Ramos s challenge to the use of the prior conviction to enhance his sentence is foreclosed by United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006). AFFIRMED. 3 13-10156

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