                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             SEP 07 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 10-50309

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01111-MMM-1

  v.
                                                 MEMORANDUM*
CARLOS ENRIQUE KISS-
VELASQUEZ, AKA Carlos Enrique
Guzman Velasquez, AKA Carlos Kiis,
AKA Carlos Enrique Kiis, AKA Carlos
Kiss Velasquez,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                           Submitted August 31, 2011**
                              Pasadena, California

Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Carlos Enrique Kiss-Velasquez appeals from his conviction and sentence of

being an illegal alien found in the United States subsequent to deportation, in

violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 18 U.S.C.

§ 3742 and 28 U.S.C. § 1291, and we affirm.

                                          I

      Kiss-Velasquez represented to the district court that he would challenge the

Government’s proof as to the voluntariness of his entry and would not present an

affirmative defense of duress. His contention that the district court erred in

granting the government’s motion in limine because his offer of proof satisfied the

requirements of a necessity defense has therefore been waived. See United States

v. Quintana-Torres, 235 F.3d 1197, 1199 (9th Cir. 2000). Furthermore, the facts

advanced by Kiss-Velasquez would not have supported a necessity defense as a

matter of law. See United States v. Perdomo-Espana, 522 F.3d 983, 987 (9th Cir.

2008).

                                          II

      The law of this Circuit does not support Kiss-Velasquez’s contention that

the admission of a warrant of deportation to substantiate his deportation in 2000

violated his rights under the Confrontation Clause. United States v. Orozco-

Acosta, 607 F.3d 1156, 1164 (9th Cir. 2010), cert. denied, 131 S. Ct. 946 (2011).


                                          2
                                          III

      Kiss-Velasquez argues that the district court erred in considering his request

for a downward departure under U.S.S.G. § 5K2.12 for imperfect duress within its

analysis of the sentence’s substantive reasonableness pursuant to 18 U.S.C.

§ 3553(a). We disagree. “In analyzing challenges to a court’s upward and

downward departures to a specific offense characteristic or other adjustment under

Section 5K, we do not evaluate them for procedural correctness, but rather, as part

of a sentence’s substantive reasonableness.” United States v. Ellis, 641 F.3d 411,

421 (9th Cir. 2011) (citing United States v. Mohamed, 459 F.3d 979, 986 (9th Cir.

2006)).

                                          IV

      Kiss-Velasquez contends that the district court erred in concluding that he

was convicted of an aggravated felony involving “sexual abuse of a minor,” and

that a deadly weapon was involved in his recent arrest. The offense of “lewd act

upon a minor,” for which Kiss-Velasquez was convicted in 1987, constitutes an

“aggravated felony” involving “sexual abuse of a minor” under California law as

interpreted by this court. United States v. Baron-Medina, 187 F.3d 1144, 1146-47

(9th Cir. 1999). The record reflects that the district court did not find that a deadly

weapon was involved in his arrest.


                                           3
                                          V

      Kiss-Velasquez has not established that the district court excessively relied

on his criminal history to the exclusion of mitigating factors. He conceded that his

criminal history was an aggravating factor. The record demonstrates that the

district court reduced his sentence below the Sentencing Guidelines range in light

of his argument that his criminal history would be “double-counted” under the

Guidelines.

                                         VI

      Kiss-Velasquez argues that he should have been sentenced within the range

of 37 to 46 months, pursuant to the fast-track plea agreement he accepted and later

rejected. A defendant is not entitled to be sentenced to the punishment

recommended under a plea agreement if he withdraws from the agreement and

proceeds to trial. United States v. Vasquez-Landaver, 527 F.3d 798, 805 (9th Cir.

2008). Contrary to Kiss-Velasquez’s contention, the record reflects that the district

court did not increase his sentence due to the resources expended by the court and

the government; rather, the district court merely noted that the resource burden had

not been minimal in rejecting Kiss-Velasquez’s argument that his sentence should

be reduced to correlate more closely to the rejected plea offer.




                                          4
                                          VII

      The district court did not abuse its discretion in failing to address Kiss-

Velasquez’s argument that he would have lesser access to various programs and

assignments in prison due to his immigration detainer, or that he should be credited

the 23 days he spent in immigration custody prior to prosecution in this matter.

The record as a whole indicates that the district court heard and considered his

arguments. See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054 (9th Cir.

2009) (affirming sentence despite district court’s failure to mention several of

defendant’s “weighty” arguments respecting mitigation because the record as a

whole indicated that trial court had listened to and considered defendant’s

arguments).

                                         VIII

      The district court did not err in concluding that Kiss-Velasquez was not

entitled to a downward departure due to his status as an alien subject to removal.

United States v. Martinez-Ramos, 184 F.3d 1055, 1058 (9th Cir. 1999). Kiss-

Velasquez has failed to cite any authority in support of his contention that the

district court abused its discretion in declining to credit him for time he spent in the

custody of immigration officials. Cf. United States v. Sanchez-Rodriguez, 161

F.3d 556, 562-64 (9th Cir. 1998) (en banc).




                                           5
                                          IX

         Kiss-Velasquez argues that his sentence is substantively unreasonable

because the sentencing range magnified the aggravating factors of his offense, but

failed to take mitigating factors into account. The record establishes, however, that

the district court considered the mitigating factors presented by Kiss-Velasquez

pursuant to § 3553(a). It reduced his sentence because it was persuaded that his

Guidelines range “double-counted” his criminal history. Under the totality of the

circumstances, his 63-month, below-Guidelines sentence was not substantively

unreasonable. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en

banc).

         AFFIRMED.




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