                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 27 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10381

              Plaintiff-Appellee,                D.C. No.
                                                 4:15-cr-02302-JAS-BPV-1
 v.

MIGUEL ANTONIO HERNANDEZ-                        MEMORANDUM*
FUENTES,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     James Alan Soto, District Judge, Presiding

                     Argued and Submitted December 5, 2017
                            San Francisco, California

Before: M. SMITH and IKUTA, Circuit Judges, and BATES,** Senior District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.


      **
              The Honorable John D. Bates, Senior United States District Judge for
the District of Columbia, sitting by designation.
      Miguel Antonio Hernandez-Fuentes appeals his sentence of thirty-seven

months’ imprisonment and three years of supervised release for felony illegal

reentry in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.

§ 1291.

      The district court did not plainly err by imposing a Guidelines sentence at

the low end of the Guidelines range and declining to exercise its discretion under

18 U.S.C. § 3553(a) to vary downward. See United States v. Carty, 520 F.3d 984,

994 (9th Cir. 2008) (recognizing that a Guidelines sentence “will usually be

reasonable” (quoting Rita v. United States, 551 U.S. 338, 351 (2007))).

Hernandez-Fuentes bases his claim of error on the ground that the district court

stated that it would “probably be a lot more sympathetic” to Hernandez-Fuentes’s

request for a downward variance if his record showed that he “stayed out of

trouble” and “had a record of employment,” but that the court did not “see any

record of employment in the United States, . . . and more troubling,” saw only “a

criminal history that puts other people at risk.” According to Hernandez-Fuentes,

the district court erred by overlooking the statement in the Presentence Report

(PSR) that Hernandez-Fuentes advised that he had installed fences, was a

fieldworker, worked for a medical company, and worked for a mirror and window

company during the periods he was in California and not in custody.


                                          2
      We disagree. First, the district court’s statement that Hernandez-Fuentes

lacked a “record of employment” is ambiguous. The district court could

reasonably have concluded that Hernandez-Fuentes’s statement to the probation

officer did not constitute a “record” of employment, given that Hernandez-Fuentes

failed to provide the court with any evidence of employment, such as names of

employers or dates of employment, despite the opportunity to do so. Nor did

Hernandez-Fuentes correct the district court’s understanding of his work history at

sentencing. Given this ambiguity, we cannot say “that materially false or

unreliable information was demonstrably made the basis for the sentence imposed

by the district court.” See United States v. Christensen, 732 F.3d 1094, 1106 (9th

Cir. 2013).

      Moreover, even if the district court overlooked Hernandez-Fuentes’s

statements regarding his work history, any such error did not affect Hernandez-

Fuentes’s substantial rights or affect the “fairness, integrity or public reputation of

judicial proceedings.” See United States v. Olano, 507 U.S. 725, 732 (1993)

(quoting United States v. Young, 470 U.S. 1, 15 (1985)). The district court’s

decision not to vary downward was not based on a procedural error that had a

“reasonable probability” of influencing the length of the sentence, see United

States v. Tapia, 665 F.3d 1059, 1061 (9th Cir. 2011), but rather on its discretionary


                                            3
weighing of the § 3553(a) factors. In this context, the district court’s statements

during sentencing demonstrated its near-exclusive focus on Hernandez-Fuentes’s

criminal history while in the United States, including his two convictions involving

multiple firearms, which resulted in the court’s conclusion that Hernandez-Fuentes

was “not willing to conform to the laws of the United States” while he was here

and thus was someone who “put other people at risk.” Given this record,

Hernandez-Fuentes “has not met his burden of showing a reasonable probability of

a different result” in sentencing. See Christensen, 732 F.3d at 1106 (quoting

United States v. Rodriguez, 627 F.3d 1372, 1382 (11th Cir. 2010)).

      We also reject Hernandez-Fuentes’s argument that his prior conviction under

section 11351 of the California Health and Safety Code did not qualify as a “drug

trafficking offense,” and therefore the district court erred in including a 12-level

enhancement applicable to defendants who were deported after a conviction for a

felony that is a drug trafficking offense. U.S. Sentencing Comm’n, Guidelines

Manual, § 2L1.2(b)(1)(A)(i) (Nov. 2015). As we have recently explained, section

11351 is a divisible statute, and we may apply the modified categorical approach to

determine whether Hernandez-Fuentes was convicted of a drug trafficking offense.

See United States v. Murillo-Alvarado, No. 14-50354, — F.3d —, 2017 WL

5986574, *4 (9th Cir. Dec. 4, 2017). It is undisputed that Hernandez-Fuentes was


                                           4
convicted under section 11351 for possessing cocaine for sale. Because cocaine is

a controlled substance under federal law, 21 U.S.C. § 812(c) sched. II(a)(4), his

prior conviction constitutes a drug trafficking offense for purposes of the 12-level

sentencing guidelines enhancement, see USSG § 2L1.2.

      Finally, we reject Hernandez-Fuentes’s claim that his trial counsel rendered

ineffective assistance by failing to object to the 12-level enhancement. Counsel

was not ineffective because any such objection would have been meritless under

controlling Ninth Circuit precedent at the time of sentencing, see United States v.

Torre-Jimenez, 771 F.3d 1163, 1166 (9th Cir. 2014), as confirmed by Murillo-

Alvarado, 2017 WL 5986574 at *4.

      AFFIRMED.




                                          5
                                                                        FILED
United States v. Hernandez-Fuentes, 16-10381
                                                                        DEC 27 2017
BATES, District Judge, concurring in part and dissenting in part:   MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS


      I concur with the panel majority on two issues: that the district court correctly

applied a 12-level sentence enhancement for Hernandez-Fuentes’s prior conviction,

and that Hernandez-Fuentes’s ineffective assistance of counsel claim fails. In my

view, however, the district court’s factual error regarding Hernandez-Fuentes’s

record of employment was plain and affected his substantial rights. We should

therefore remand for resentencing.

      The majority reads ambiguity into the district court’s incorrect statement that

Hernandez-Fuentes had no “record of employment in the United States” reflected in

the PSR. I disagree. In context, it is clear that when the district court used the term

“record of employment,” it was not referring to a formal record with names and dates

of employment, as the majority imagines may have been the case. Immediately after

claiming that the PSR showed no record of employment in the United States, the

district court said that the PSR “talks about your employment while you’re in

custody, it talks about your employment in Mexico.” It would make little sense for

the district court to have so directly compared the PSR’s treatment of Hernandez-

Fuentes’s different employment histories if it was requiring an elaborate record: the

PSR’s information regarding Hernandez-Fuentes’s employment history was just as

vague for his time in prison and in Mexico as it was for his time in the United States.


                                          1
The court’s comments, read as a whole, suggest instead that it simply overlooked

the sentence in the PSR stating Hernandez-Fuentes’s employment in the U.S. “This

is error, and it is plain.” United States v. Pena, 314 F.3d 1152, 1157 (9th Cir. 2003).1

      This error also affected Hernandez-Fuentes’s substantial rights. Hernandez-

Fuentes need only show that there is “‘a reasonable probability that the [court’s]

error affected the outcome’—here the longer sentence imposed.” United States v.

Gonzalez-Aguilar, 718 F.3d 1185, 1189 (9th Cir. 2013) (citation and internal

quotation marks omitted); see United States v. Joseph, 716 F.3d 1273, 1280 (9th Cir.

2013) (“A ‘reasonable probability’ is, of course, less than a certainty, or even a

likelihood.” (quoting United States v. Tapia, 665 F.3d 1059, 1061 (9th Cir. 2011)).

He has done so. Indeed, the district court was quite explicit, telling Hernandez-

Fuentes: “I would probably be a lot more sympathetic to your position if your record

showed that you came to the United States, you stayed out of trouble, you didn’t

get—you had a record of employment.” If a court says that it would “probably be a

lot more sympathetic” to a defendant but for two facts, one of which was erroneous,

there is at least a “reasonable probability” that the court would impose a different

sentence if the error were corrected.



      1
       The defendant confirmed at the sentencing hearing that “my work” is in
America: “I have a way to earn a living here. I know how to earn a living here.”
Yet at no point did the district court seek further detail concerning Hernandez-
Fuentes’s employment in America.
                                           2
      The majority rightly notes that the district court was primarily concerned with

Hernandez-Fuentes’s prior convictions, rather than with his employment record. But

plainly the court was not concerned only with the former. It is clear that both the

prior convictions and the perceived lack of employment factored significantly into

the court’s decision. The court flowed immediately from one to the other in giving

its reasons why it was not being more “sympathetic” to Hernandez-Fuentes. The

court also stated that it was “not going to vary downward in this case” because there

were “3553(a) factors that certainly do not mitigate in the defendant’s favor, and

those are the factors”—factors, in the plural—“that I put on the record.” The only

negative factors to which the court pointed were Hernandez-Fuentes’s prior

convictions and his employment history in the United States. This Court has

previously found prejudice when an error is one of multiple factors leading a court

to impose a particular sentence. See, e.g., Tapia, 665 F.3d at 1061–62 (erroneous

consideration of Tapia’s correctional and rehabilitative needs as one of several

sentencing factors affected substantial rights).    Indeed, the sentencing statute

explicitly “contemplates that multiple ‘factors’ will have an impact on a district

court’s determination of the length of an offender’s sentence.” Id. at 1062. Here,

there are numerous indications in the record that Hernandez-Fuentes’s employment

history in America played a role in the court’s sentencing decision.




                                         3
      Even granting that the district court’s incorrect view of Hernandez-Fuentes’s

employment history was the lesser of the two factors the court considered, the error

was still prejudicial. “This court has held that the [reasonable probability] standard

can be met even without direct evidence of what sentence would have been imposed

if not for the district court’s error.” Id. at 1061. And, indeed, “[w]e have held that

when a plain error may have led to a sentence that was one month longer than

necessary, even within the Sentencing Guidelines, that error ‘affects substantial

rights.’” Joseph, 716 F.3d at 1280 (quoting United States v. Hammons, 558 F.3d

1100, 1106 (9th Cir. 2009)).      Here, the district court’s erroneous belief that

Hernandez-Fuentes did not work during his long residence in the United States

appears to have given it the false impression that Hernandez-Fuentes contributed

only negatively to society while in this country. That view factored into the decision

not to vary downward from the Guidelines, and thus “could easily have . . . led the

district court to impose an additional one month of imprisonment” over what it might

otherwise have done. Hammons, 558 F.3d at 1106.

      Because the district court’s sentencing error “seriously affects the fairness,

integrity, or public reputation of judicial proceedings,” we should remand for

resentencing. Joseph, 716 F.3d at 1277 (citation and internal quotation marks

omitted). This Court has been particularly willing to exercise its discretion in the

sentencing context. See United States v. Castillo-Casiano, 198 F.3d 787, 792 (9th


                                          4
Cir. 1999), amended, 204 F.3d 1257 (9th Cir. 2000). True, most of the cases in

which this Court has remanded for resentencing have involved legal errors. See,

e.g., United States v. Scott, 626 F. App’x 722, 725 (9th Cir. 2015) (Guidelines

calculation); Joseph, 716 F.3d at 1281 (discretion to impose concurrent sentences);

Tapia, 665 F.3d at 1061–63 (impermissible consideration of sentencing factor). But

the rationales underlying the remands in those cases—that defendants should not

serve longer sentences based on mistakes that were not their own, and that

sentencing errors are easy to correct, see Castillo-Casiano, 198 F.3d at 792—apply

just as strongly to the plain factual error here.

      On this issue, therefore, I respectfully dissent.




                                            5
