USA V. ELIAS ORTIZ-ROSALES, No. 14-10022 (9th Cir. 2015)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 03 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 14-10022 D.C. No. 4:13-cr-01481-CKJ-JR-1 v. MEMORANDUM* ELIAS ORTIZ-ROSALES, a.k.a. Julian Elias Ortiz-Rosales, a.k.a. J. Elias Rosales Ortiz, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Marvin E. Aspen, Senior District Judge, Presiding Submitted November 12, 2014** Before: HUG, FARRIS, and CANBY, Circuit Judges. Elias Ortiz-Rosales appeals from the district court’s judgment and challenges the 51-month sentence imposed following his guilty-plea conviction for * 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). illegal re-entry, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Ortiz-Lopez contends that the district court procedurally erred by failing to rule on his motion for a variance. He did not object on these grounds in the district court, and we therefore review for plain error. See United States v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008). There was no plain error. The district court acknowledged Ortiz-Lopez’s argument for a variance, explained its reasons for rejecting that argument, and imposed a sentence within the Sentencing Guidelines range. Relying on United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), Ortiz-Rosales argues that his sentence is substantively unreasonable because of the age of a prior conviction that resulted in an enhancement under the advisory Sentencing Guidelines. The sentence is not substantively unreasonable in light of the 18 U.S.C. § 3553(a) factors and the totality of the circumstances, including the seriousness of the enhancing prior conviction and Ortiz-Lopez’s subsequent criminal and immigration history. See Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Reyes, 764 F.3d 1184, 1198-99 (9th Cir. 2014) (distinguishing Amezcua-Vasquez based on defendant’s criminal history subsequent to the enhancing prior conviction); United States v. Orozco-Acosta, 607 2 F.3d 1156, 1167 (9th Cir. 2010) (distinguishing Amezcua-Vasquez where higher sentence was necessary to deter defendant from more illegal re-entries). AFFIRMED. 3
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