                                                                          FILED
                            NOT FOR PUBLICATION                            JAN 24 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30002

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00092-SEH-1

       v.
                                                 MEMORANDUM *
JAVIER DOLORES GONZALEZ-DIAZ,

              Defendant - Appellant.


UNITED STATES OF AMERICA,                        No. 10-30030

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00077-SEH-1

       v.

JAVIER DOLORES GONZALEZ-DIAZ,

              Defendant - Appellant.

                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                     Argued and Submitted November 5, 2010
                                Portland, Oregon




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: W. FLETCHER and FISHER, Circuit Judges, and JONES, District
        Judge.**

      Javier Dolores Gonzalez-Diaz appeals his conviction and sentence for illegal

reentry, identity theft and related offenses. We have jurisdiction under 28 U.S.C.

§ 1291 and we affirm. Because the facts are known to the parties, we repeat them

only as necessary to explain our decision.1

      1.       The district court properly refused to instruct the jury on official

restraint because Gonzalez-Diaz was not entering the United States from a foreign

country. See United States v. Ambriz-Ambriz, 586 F.3d 719, 724 (9th Cir. 2009)

(“Because the uncontroverted evidence was that [the defendant] never legally left

the United States [when he drove into Canada], the official restraint doctrine was

not applicable even though he was arrested at a border station.”).

      2.       The district court did not err by denying Gonzalez-Diaz a sentencing

adjustment for acceptance of responsibility. Gonzalez-Diaz did not demonstrate

sincere remorse for his conduct. See United States v. Daly, 974 F.2d 1215, 1218

(9th Cir. 1992) (per curiam). Furthermore, although at trial Gonzalez-Diaz raised a



          **
        The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
      1
       We address Gonzalez-Diaz’s argument that the district court erroneously
denied his motion for acquittal in a concurrently filed published opinion.

                                             2
legal defense to being found in the United States, he also contested the factual

predicates of his liability, including recanting aspects of his pretrial confession.

See U.S.S.G. § 3E1.1 cmt. n. 2 (explaining that a “a defendant may clearly

demonstrate an acceptance of responsibility for his criminal conduct even though

he exercises his constitutional right to a trial” in “rare situations,” including “where

a defendant goes to trial to assert and preserve issues that do not relate to factual

guilt” (emphasis added)).

      3.     The district court adequately explained its reasons for rejecting

Gonzalez-Diaz’s sentencing arguments. The court explained that Gonzalez-Diaz’s

criminal history score did not overrepresent his criminal history because his

previous drug smuggling conviction, although several years old, was serious, and

because Gonzalez-Diaz had a previous conviction for illegal reentry and four

previous deportations. The court also adequately explained its reasons for

applying a 16-level enhancement under U.S.S.G. § 2L1.2(b), stating that although

his previous drug conviction was “some time ago,” it “involved the smuggling of a

large quantity of unlawful drugs.”

      The district court did not specifically address Gonzalez-Diaz’s argument that

the court should have rejected § 2L1.2(b) under Kimbrough v. United States, 552

U.S. 85, 109-10 (2007), because § 2L1.2(b) does not reflect “empirical data and


                                            3
national experience.” Gonzalez-Diaz, however, offers no authority that a district

court is required to expressly address each argument in a defendant’s sentencing

memorandum not distinctly argued during the sentencing hearing. See United

States v. Ressam, 593 F.3d 1095, 1119 (9th Cir. 2010) (citing United States v. Goff,

501 F.3d 250, 255 (3d Cir. 2007) (“Although the District Court is not required

either to comment on every argument counsel advances or to make findings as to

each § 3553(a) factor, it nevertheless should expressly deal with arguments

emphasized by the parties . . . .”)). Furthermore, even if the district court should

have specifically addressed Gonzalez-Diaz’s Kimbrough argument at the hearing,

there was no plain error because we have repeatedly held that the sentencing

scheme under § 1326 and § 2L1.2(b) serves a rational purpose. See United States

v. Ruiz-Chairez, 493 F.3d 1089, 1091 (9th Cir. 2007); United States v.

Ramirez-Garcia, 269 F.3d 945, 947-48 (9th Cir. 2001).

      4.     We also reject Gonzalez-Diaz’s argument that his sentence is

substantively unreasonable in light of the totality of the circumstances. Although

Gonzalez-Diaz’s drug trafficking conviction was 13 years old, it is a serious

smuggling offense. In addition, he has been deported four times, has a previous

§ 1326 conviction and was on supervised release when the current offenses were

committed. Gonzalez-Diaz also benefitted substantially because five of the eight


                                           4
counts were grouped for sentencing purposes. His mid-guidelines-range sentence

thus is substantively reasonable.

      AFFIRMED.




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