                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 02 2014

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

UNITED STATES OF AMERICA,                        No. 13-50473

              Plaintiff - Appellee,              D.C. No. 3:13-cr-02073-LAB-1

  v.
                                                 MEMORANDUM*
PEDRO DOMINGUEZ-GARCIA,

              Defendant - Appellant.


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

                        Argued and Submitted July 11, 2014
                               Pasadena, California

Before: WARDLAW, CLIFTON, and BENAVIDES,** Circuit Judges.

       This is the third in a series of appeals where the government has agreed to a

four-level downward departure in exchange for early disposition of an 8 U.S.C. §

1326 charge pursuant to guidelines set forth by the Department of Justice in a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
memorandum dated January 31, 2012 by James M. Cole, and the district judge has

rejected the plea agreement based, in part, on his disagreement with the

government’s interpretation of the criteria in that memorandum. But, unlike in the

prior two cases, United States v Lara-Renteria, No. 13-50419, 2014 WL 5370067

(9th Cir. Oct. 23, 2014) and United States v. Hernandez-Hernandez, No. 13-

504543, 2014 WL 5370071 (9th Cir. Oct. 23, 2014), some parts of the district

judge’s explanation cause us to question whether he may have developed an

impermissible “blanket policy” of rejecting fast-track plea agreements in recidivist

cases where a Mexican citizen defendant has returned to his U.S. citizen family

following deportation. See United States v. Gonzalez, 502 F. App’x 665 (9th Cir.

2012) (holding that a district court’s “blanket policy against accepting any binding

plea agreements in fast-track cases” was an abuse of discretion).

      It would allow us to conduct more meaningful review if the district court

rejecting a fast-track plea agreement and imposing a lengthier term of incarceration

than that recommended by the government would clarify the sentencing

proceedings consistent with our opinion in United States v. Carty, 520 F.3d 984

(9th Cir. 2008) (en banc). Although the district judge has the discretion to reject

the government’s sentencing recommendation, the rejection cannot be arbitrary or

based on a blanket policy for one type of repeat violator. And the district judge


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must explain any deviation from the guidelines range, Gall v. United States, 552

U.S. 38, 51 (2007), as well his rejection of “specific, nonfrivolous arguments

tethered to a relevant § 3553(a) factor in support of a requested sentence.” Carty,

520 F.3d at 992.1

      We ultimately conclude, however, that the district court’s rejection of

Dominguez-Garcia’s fast-track plea agreement was not an abuse of discretion. Id.

at 993. Its refusal to exercise its discretion to decrease the offense level by four for

early disposition was not substantively unreasonable. See United States v. Ellis,

641 F.3d 411, 421 (9th Cir. 2011) (“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.”). That is, the district judge

rejected the government’s recommendation of a four-level reduction in offense

level in exchange for his fast-track plea based on an individualized consideration of

Dominguez-Garcia’s criminal and immigration history. This included, for


      1
        We have recently explained the history of the fast-track plea program and
its benefits to both the government and defendants in United States v. Morales-
Heredia, 2014 WL 5018109 (9th Cir. Oct. 8, 2014). At oral argument before us,
an attorney from the Federal Defenders of San Diego, Inc., stated that her office is
advising clients who are to be sentenced by the district judge in this case not to
enter fast-track plea agreements because of the appearance of a blanket policy
against honoring them.
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example, two previous convictions under 8 U.S.C. § 1325 and a charge bargain in

connection with at least one of those convictions. Additionally, the probation

report revealed that Dominguez-Garcia had a lengthy criminal history, which

included a series of misdemeanors and a felony conviction for domestic violence.

After recalculating the guidelines range, the district court correctly found an

offense level of thirteen and criminal history category of four, for a sentencing

range of twenty-one to thirty months.

      Turning to the factors identified in 18 U.S.C. § 3553(a), the district judge

considered both aggravating and mitigating circumstances, including Dominguez-

Garcia’s immigration record of prior removals and his steady employment history.

The district judge also considered that many of Dominguez-Garcia’s family

members reside in the United States, including his five children. The district judge

did not abuse his discretion in determining that a term of incarceration of thirty-six

months was “sufficient, but not greater than necessary” to accomplish the goals of

sentencing. United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009).

      AFFIRMED.




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