USA V. JUAN GOMEZ-FONSECA, No. 19-30009 (9th Cir. 2019)

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FILED NOT FOR PUBLICATION AUG 23 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, U.S. COURT OF APPEALS No. 19-30009 D.C. No. 2:18-cr-00054-WFN-1 v. MEMORANDUM* JUAN MANUEL GOMEZ-FONSECA, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, District Judge, Presiding Submitted August 19, 2019** Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges. Juan Manuel Gomez-Fonseca appeals from the district court’s judgment and challenges the 60-month sentence imposed following his guilty-plea conviction for being an alien in the United States after deportation, 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 Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Gomez-Fonseca contends that the district court procedurally erred by failing to consider or address his arguments for a within-Guidelines sentence. The record belies this claim. The district court expressly considered Gomez-Fonseca’s arguments and explained that an upward variance from the Guidelines range was warranted in light of Gomez-Fonseca’s significant criminal and immigration history, and the need to afford adequate deterrence. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Gomez-Fonseca also argues that the above-Guidelines sentence is substantively unreasonable in light of his lack of education, untreated substance abuse problem, impoverished background, and employment history. The district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances. See Gall, 552 U.S. at 51. AFFIRMED. 2 19-30009

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