United States v. Hernandez-Fuentes, 122717 FED9, 16-10381

Docket Nº:16-10381
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUEL ANTONIO HERNANDEZ-FUENTES, Defendant-Appellant.
Judge Panel:Before M. SMITH and IKUTA, Circuit Judges, and BATES, Senior District Judge. BATES, District Judge, concurring in part and dissenting in part:
Case Date:December 27, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MIGUEL ANTONIO HERNANDEZ-FUENTES, Defendant-Appellant.

No. 16-10381

United States Court of Appeals, Ninth Circuit

December 27, 2017

NOT FOR PUBLICATION

Argued and Submitted December 5, 2017 San Francisco, California

Appeal from the United States District Court for the District of Arizona James Alan Soto, District Judge, Presiding D.C. No. 4:15-cr-02302-JAS-BPV-1

Before M. SMITH and IKUTA, Circuit Judges, and BATES, [**] Senior District Judge.

MEMORANDUM [*]

Miguel Antonio Hernandez-Fuentes appeals his sentence of thirty-seven months' imprisonment and three years of supervised release for felony illegal reentry in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291.

The district court did not plainly err by imposing a Guidelines sentence at the low end of the Guidelines range and declining to exercise its discretion under 18 U.S.C. § 3553(a) to vary downward. See United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (recognizing that a Guidelines sentence "will usually be reasonable" (quoting Rita v. United States, 551 U.S. 338, 351 (2007))). Hernandez-Fuentes bases his claim of error on the ground that the district court stated that it would "probably be a lot more sympathetic" to Hernandez-Fuentes's request for a downward variance if his record showed that he "stayed out of trouble" and "had a record of employment, " but that the court did not "see any record of employment in the United States, . . . and more troubling, " saw only "a criminal history that puts other people at risk." According to Hernandez-Fuentes, the district court erred by overlooking the statement in the Presentence Report (PSR) that Hernandez-Fuentes advised that he had installed fences, was a fieldworker, worked for a medical company, and worked for a mirror and window company during the periods he was in California and not in custody.

We disagree. First, the district court's statement that Hernandez-Fuentes lacked a "record of employment" is ambiguous. The district court could reasonably have concluded that Hernandez-Fuentes's statement to the probation officer did not constitute a "record" of employment, given that Hernandez-Fuentes failed to provide the court with any evidence of employment, such as names of employers or dates of employment, despite the opportunity to do so. Nor did Hernandez-Fuentes correct the district court's understanding of his work history at sentencing. Given this ambiguity, we cannot say "that materially false or unreliable information was demonstrably made the basis for the sentence imposed by the district court." See United States v. Christensen, 732 F.3d 1094, 1106 (9th Cir. 2013).

Moreover, even if the district court overlooked Hernandez-Fuentes's statements regarding his work history, any such error did not affect Hernandez-Fuentes's substantial rights or affect the "fairness, integrity or public reputation of judicial proceedings." See United States v. Olano, 507 U.S. 725, 732 (1993) (quoting United States v. Young, 470 U.S. 1, 15...

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