                                                                          FILED
                           NOT FOR PUBLICATION                             DEC 22 2011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. 10-10310

              Plaintiff - Appellee,             D.C. No. 3:06-cr-00710-WHA-2

  v.
                                                MEMORANDUM *
LUIS ALBERTO GONZALEZ,

              Defendant - Appellant.



                   Appeal from the United States District Court
                     for the Northern District of California
                    William Alsup, District Judge, Presiding

                    Argued and Submitted November 15, 2011
                            San Francisco, California

Before: HAWKINS and M. SMITH, Circuit Judges, and DUFFY, District Judge.**


       Luis Alberto Gonzalez (“Gonzalez”) appeals for the second time his 96-month

sentence imposed for conspiracy to commit wire fraud and wire fraud, arising out of




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
           The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern New York, sitting by designation.
a car insurance scam he participated in with his wife, Katherine Paiz (“Paiz”). In a

prior appeal, this court affirmed his conviction but remanded for resentencing because

the district court had procedurally erred in its calculation of the Sentencing Guidelines

by imposing two insufficiently supported enhancements. On remand, the district court

accepted the lower Guideline range as correct, but nonetheless imposed the identical

96-month sentence, relying on the sentencing factors set forth in 18 U.S.C. § 3553(a).

We affirm.

      The district court did not impermissibly punish Gonzalez for exercising his

constitutional right to trial. The court did not express any indication that it was

punishing Gonzalez for putting the government to its proof versus pleading guilty. Cf.

United States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir. 1982). Rather, the

principal concern voiced by the district court was with Gonzalez’s last-minute

decision to disavow his earlier confession and blame his wife for the crime, in contrast

to Gonzalez’s earlier representation that he would testify for her at her trial and

exculpate her (which had persuaded the court to sever their trials in the first place).

      Nor did the district court commit any significant procedural error during the

resentencing. Although the district court misstated that Gonzalez had recanted his

confession after jeopardy attached (as opposed to a week before) and that he had

violated conditions of release one day later (as opposed to five days later), it cannot


                                           2
be said, upon a review of the sentencing transcript, that the court based the sentence

on the specific timing of these events, as opposed to the broader principles the court

was discussing at the time.

      The district court discussed the Guidelines calculation with the parties at the

outset and clearly accepted the probation office’s calculation as correct. It then spent

considerable time outlining Gonzalez’s history of “lack of respect for the law,” before

concluding that an above-Guidelines sentence was needed for a variety of § 3553

factors. The record as a whole does not suggest a passing or cursory statement about

the Guideline range, but indicates the district court considered the range but found it

to be inadequate to serve the sentencing goals. See United States v. Autery, 555 F.3d

864, 873 (9th Cir. 2009).

      The district court did not err by considering Gonzalez’s post-sentencing

conduct. See Pepper v. United States, 131 S. Ct. 1229 (2011). The district court also

sufficiently addressed and rejected Gonzalez’s argument that his criminal history was

overstated.1




      1
          Although Gonzalez casts this as a procedural error, we have held that
“variances” from a correctly calculated Guideline range are to be considered as part
of the substantive reasonableness of the sentence, which is discussed below. United
States v. Ellis, 641 F.3d 411, 421-22 (9th Cir. 2011).

                                           3
       Finally, even assuming the court may have violated Federal Rule of Criminal

Procedure 32 by failing to inform Gonzalez of ex parte information it received from

his wife’s counsel that she did not plan to call Gonzalez because she did not think

Gonzalez could credibly exonerate his wife after his defense at his own trial, any error

was harmless as this information was largely cumulative of the public credibility

problems Gonzalez had, which were expressly noted by the district court (i.e., the

differences between his confession to the FBI and his defense at trial). See United

States v. Warr, 530 F.3d 1152, 1163 (9th Cir. 2008).

       As there were no procedural errors with the sentence, we proceed to review for

substantive reasonableness; we review the district court’s decision for an abuse of

discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

Although the district court was primarily focused on the need to “promote respect for

the law,” the record indicates that the court did consider the additional factors set forth

in § 3553(a) and also based the sentence on the need to protect the public, provide

deterrence, and adequately reflect the seriousness of the crime. Although some of the

factors identified to support the above-Guidelines sentence were encompassed by the

criminal history calculation, the court also identified some factors which were not.




                                            4
See United States v. Lichtenberg, 631 F.3d 1021, 1027 (9th Cir. 2011). The sentence

was not substantively unreasonable.

      AFFIRMED.




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