                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 02 2015

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50122

               Plaintiff - Appellee,             D.C. No. 3:13-cr-03251-DMS-1

  v.
                                                 MEMORANDUM*
PABLO MARTINEZ-GUTIERREZ,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                            Submitted January 29, 2015**

Before:        HUG, FARRIS, and CANBY, Circuit Judges.

       Pablo Martinez-Gutierrez appeals from the district court’s judgment and

challenges the 48-month sentence imposed following his guilty-plea conviction for

being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Martinez-Gutierrez contends that the district court erred by considering his

prior sentences when determining his sentence in the instant case. The district

court did not err. The sentences for Martinez-Gutierrez’s prior § 1326 convictions

are part of his history and characteristics and are relevant to choosing a sentence

that will adequately deter future criminal conduct. The defendant’s history and

characteristics and the need for the sentence to provide adequate deterrence are

amongst the 18 U.S.C. § 3553(a) factors a court is to consider when determining

the appropriate sentence. See 18 U.S.C. § 3553(a)(1), (a)(2); United States v.

Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc). Thus, it is permissible for a

court to consider whether a previous sentence provided sufficient deterrence when

determining the sentence for a new offense. See United States v. Higuera-Llamos,

574 F.3d 1206, 1211-12 (9th Cir. 2009).

      To the extent Martinez-Gutierrez contends that the district court was

required to impose a sentence within the range calculated using a fast-track

departure, he is incorrect. Consistent with the Sentencing Guidelines, the district

court granted the request for a fast-track departure and calculated the resulting

advisory sentencing range. However, the Sentencing Guidelines are only one

factor to be taken into account when selecting the appropriate sentence, and the




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district court had the discretion to vary upwards from the sentencing range that

resulted from the fast-track departure. See Carty, 520 F.3d at 991, 993.

      Martinez-Gutierrez contends that the 48-month sentence is substantively

unreasonable. The sentence is not substantively unreasonable in light of the §

3553(a) factors and the totality of the circumstances. See Gall v. United States,

552 U.S. 38, 51 (2007). This includes not only Martinez-Gutierrez’s medical

needs and the age and nature of his prior crime of violence, but also the need for

deterrence, his immigration history, and his other prior convictions and sentences.

See United States v. Orozco-Acosta, 607 F.3d 1156, 1167 (9th Cir. 2010) (holding

that sentence was not too high despite age of prior conviction where higher

sentence was necessary to deter defendant from subsequent re-entry); United States

v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (holding that district court

did not place undue weight on need for deterrence where defendant repeatedly

entered the United States illegally); cf. United States v. Higuera-Llamos, 574 F.3d

1206, 1211-12 (9th Cir. 2009) (holding that increased sentence was substantively

reasonable where previous sentence for illegal re-entry was insufficient to deter the

appellant’s criminal conduct).

      AFFIRMED.




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