                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 15 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50027

                Plaintiff-Appellee,             D.C. No.
                                                3:16-cr-02283-LAB-1
 v.

CLISERIO BALMES-CRUZ,                           MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                       Argued and Submitted March 9, 2018
                              Pasadena, California

Before: TASHIMA and NGUYEN, Circuit Judges, and SIMON,** District Judge.

      Cliserio Balmes-Cruz (“Balmes-Cruz”) appeals his sentence for illegal

reentry of a removed alien, in violation of 8 U.S.C. § 1326. Balmes-Cruz pleaded

guilty under a “fast track” plea agreement. At sentencing, both Balmes-Cruz and

the Government recommended a four-level departure under the United States


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
Sentencing Guidelines (“Guidelines”) and a sentence of four months in custody, or

time served. The district court denied the four-level fast track departure and

granted only a two-level departure, sentencing Balmes-Cruz to 12 months in

custody. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and

we affirm.

      At sentencing, the district court stated that it was granting only a two-level

departure based in part on the court’s belief that Balmes-Cruz previously had been

“deported” 12 times and had a “prior immigration felony.” Balmes-Cruz argues

that the district court erroneously concluded that he had been deported 12 times,

when in fact he had been “voluntarily removed” 11 times and deported only once.

Balmes-Cruz also argues that the district court erroneously believed that he

previously had been convicted in 2007 of the same crime for which he was then

being sentenced, when in fact his 2007 felony conviction was for aiding and

abetting the transportation of an illegal alien in violation of 8 U.S.C. § 1324 and 18

U.S.C. § 2.

      The district court explained that Balmes-Cruz was “entitled to something in

light of the fact that it has been eight years” since his deportation in 2008, but a

four-level proposed reduction was inappropriate in light of his “history of

deportations and a prior immigration felony.” The district court noted that

accepting the parties’ recommendation would result in a Guidelines range that was


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lower than the 15-month sentence that Balmes-Cruz received for his “last

immigration felony,” a result that the district court expressed would “incentivize[]

people to return to the United States.”

      According to Balmes-Cruz, the district court relied on clearly erroneous

facts. Because he did not raise these objections before the district court at the time

of sentencing, we review the district court’s calculation of his sentence for plain

error. United States v. Lloyd, 807 F.3d 1128, 1139 (9th Cir. 2015). The district

court did not plainly err.

      Although Balmes-Cruz argues that voluntary removals are voluntary and

less expensive to the Government than deportation, in each prior case Balmes-Cruz

was found to be present in the United States illegally. At sentencing, the district

court incorrectly referenced Balmes-Cruz’s 12 prior “deportations,” rather than

his 11 prior voluntary removals and one prior deportation, but defense counsel and

the Government made the same mistake. This distinction is not material. The

district court expressed concern over Balmes-Cruz’s recidivist tendencies illegally

to return to the United States. This concern is not lessened by the fact that a

voluntary departure is less expensive to the Government than a deportation.

Further, Balmes-Cruz did have a prior immigration-related felony. Thus, the

district court did not base Balmes-Cruz’s sentence on clearly erroneous facts.

      Balmes-Cruz also argues that the district court applied the wrong legal


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standard when it denied the parties’ joint recommendation for a four-level fast

track departure. As a general proposition, in analyzing challenges to a district

court’s upward or downward departures under the Guidelines, we do not evaluate

such departures for procedural correctness, but rather, as part of a sentence’s

substantive reasonableness. See United States v. Ellis, 641 F.3d 411, 421 (9th Cir.

2011). The substantive reasonableness of a sentence is reviewed for abuse of

discretion. United States v. Crowe, 563 F.3d 969, 977 (9th Cir. 2009). We will

reverse a sentencing decision only if we have “a definite and firm conviction that

the district court committed a clear error of judgment.” United States v. Ressam,

679 F.3d 1069, 1086 (9th Cir. 2012) (en banc). We do not have such a conviction

in this case.1

       AFFIRMED.




1
 During oral argument and in post-argument correspondence, Balmes-Cruz
contends that the district court manipulated the Guidelines calculation to achieve a
particular Guidelines range. In United States v. Rosales-Gonzales, 801 F.3d 1177
(9th Cir. 2015), which involved the same sentencing judge who sentenced Balmes-
Cruz, we noted that although a “district court may impose a sentence outside the
Guidelines range, it may not manipulate the calculations under the Sentencing
Guidelines in order to produce a Guidelines range that will allow it to impose the
sentence it prefers.” Id. at 1181 (internal quotation marks omitted). Because
Balmes-Cruz did not raise this issue in his opening brief, we decline to consider it.
See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018) (“The usual rule is that
arguments raised for the first time on appeal or omitted from the opening brief are
deemed forfeited.”).

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