USA V. GUADALUPE DIAZ-CRUZ, No. 13-50621 (9th Cir. 2014)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 12 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 13-50621 D.C. No. 3:13-cr-02485-BEN v. MEMORANDUM* GUADALUPE DIAZ-CRUZ, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Submitted December 9, 2014** Before: WALLACE, LEAVY, and BYBEE, Circuit Judges. Guadalupe Diaz-Cruz appeals from the district court’s judgment and challenges the 36-month sentence imposed following his guilty-plea conviction for being a removed alien found in the United States, 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). Diaz-Cruz contends that his sentence is substantively unreasonable because the court failed to grant a downward departure under U.S.S.G. § 4A1.3(b), which authorizes the district court to depart when the defendant’s criminal history category overstates the seriousness of his criminal history. Our review of a district court’s decision whether to depart under section 4A1.3 is limited to determining whether the court imposed a substantively reasonable sentence. See United States v. Ellis, 641 F.3d 411, 421-22 (9th Cir. 2011). The district court did not abuse its discretion in imposing Diaz-Cruz’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The record reflects that the court varied upwards from the parties’ sentencing recommendation in light of Diaz-Cruz’s history of driving under the influence and immigration violations. The sentence, 12 months above the top of the advisory Guidelines range, is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances. See id. AFFIRMED. 2 13-50621

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