                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                              SEP 15 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                      No. 16-10374

              Plaintiff-Appellee,              D.C. No. 3:15-cr-00069-RCJ-VPC-1

 v.                                            MEMORANDUM*

JOSE IGNACIO HERNANDEZ-
GUZMAN,

              Defendant-Appellant.


                   Appeal from the United States District Court
                             for the District of Nevada
                  Robert C. Jones, Senior District Judge, Presiding

                          Submitted September 11, 2017**
                             San Francisco, California

Before: KOZINSKI and FRIEDLAND, Circuit Judges, and BENNETT,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
      1.     Defendant Jose Ignacio Hernandez-Guzman appeals the 20-month

sentence he received for being an alien illegally or unlawfully in the United States

in possession of a firearm, under 18 U.S.C. § 922(g)(5)(A), arguing that the district

court’s sentence was both procedurally and substantively unreasonable.

      Because Hernandez-Guzman did not raise below is argument that the

sentence was procedurally unreasonable, we review for plain error. United States

v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). To establish plain

error, (1) there must be an “error or defect,” (2) the “error must be clear or obvious,

rather than subject to reasonable dispute,” (3) the “error must have affected the

appellant’s substantial rights, which in the ordinary case means he must

demonstrate that it ‘affected the outcome of the district court proceedings,’” and

(4) if the above three prongs are satisfied, this court has the discretion to remedy

the error “only if the error ‘seriously affects the fairness, integrity or public

reputation of judicial proceedings.’” Puckett v. United States, 556 U.S. 129, 135

(2009) (quoting United States v. Olano, 507 U.S. 725, 734, 736 (1993)). We

review the substantive reasonableness claim for abuse of discretion. United States

v. Autery, 555 F.3d 864, 871 (9th Cir. 2009).




                                            2
      Hernandez-Guzman argues that his sentence was procedurally unreasonable

because of the district court’s comments about his deportation status 1 The district

court did not commit plain error, by observing that it was unclear whether

Hernandez-Guzman would be deported. Moreover, Hernandez-Guzman has not

shown a reasonable probability that he would have received a different sentence

absent this alleged error. See United States v. Christensen, 732 F.3d 1094, 1103-

06 (9th Cir. 2013).

      2.     Hernandez-Guzman argues that the district court procedurally erred

by failing to address the mitigating evidence of his “traumatic and violent past.”

We review for plain error, see Valencia-Barragan, 608 F.3d at 1108, and conclude

that there is none. The district court listened to Hernandez-Guzman’s arguments,

stated that it had reviewed the criteria set forth forth in 18 U.S.C. § 3553(a), and

stated its reasons for varying minimally upward from the Guidelines range. ts




      1
        The court grants Hernandez-Guzman’s motion for judicial notice of
transcripts from criminal sentencing hearings involving undocumented immigrants
in which the district court has commented on executive deportation policies. Dkt.
#5-1, Mot. For Judicial Notice. On appeal, this court may take judicial notice of
documents “not subject to reasonable dispute.” Trigueros v. Adams, 658 F.3d 983,
987 (9th Cir. 2011) (quoting FED. R. EVID. 201(b)). Although some of the district
court's comments are deeply troubling, comments in other cases cannot alone
support a claim of procedural error in Hernandez-Guzman's sentencing.
                                           3
failure to do more does not constitute plain error. See United States v. Carty, 520

F.3d 984, 992-93 (9th Cir. 2008) (en banc).

      3.     Hernandez-Guzman argues that the district court procedurally erred

by relying on clearly erroneous factual findings, including a finding that

Hernandez-Guzman was “willing” to shoot other people. The district court’s

finding was based on an alleged gesture Hernandez-Guzman made toward his

waist when questioned by police about whether he was carrying a weapon. We

conclude that the district court did not plainly err. Although the gesture was

susceptible to competing interpretations, the district court's assessment of its

meaning is not “illogical, implausible, or without support in the record.” See

United States v. Fitch, 659 F.3d 788, 797 (9th Cir. 2011) (quoting United States v.

Spangle, 626 F.3d 488, 497 (9th Cir. 2010)).

      4.     Hernandez-Guzman contends that the district court procedurally erred

when it imposed his term of supervised release. Hernandez-Guzman argues that,

because the Guidelines state that the sentencing court “ordinarily should not

impose a term of supervised release,” U.S.S.G. § 5D1.1(c), the district court erred

in failing to explain its deviation from the Guidelines recommendation. We

conclude that the district court did not plainly err. Contrary to

Hernandez-Guzman’s contention, the record reflects that the district court properly


                                           4
based the term of supervised release on its concerns about the danger

Hernandez-Guzman posed to the community. See 18 U.S.C. § 3583(c).

      5.     Finally, Hernandez-Guzman argues that his sentence is unreasonable.

A sentencing judge is in a superior position to make factual determinations and

evaluate their import under § 3553(a), United States v. Overton, 573 F.3d 679, 700

(9th Cir. 2009), and only a procedurally erroneous or substantively unreasonable

sentence will be set aside. See Carty, 520 F.3d at 993. Here, the district court

adequately considered the sentencing factors in § 3553(a) and explained its reasons

for its sentence. The sentence is substantively reasonable in light of the § 3553(a)

factors and the totality of the circumstances.

AFFIRMED.




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