                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 19 2012

                                                                        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. 10-50522

              Plaintiff - Appellee,              D.C. No. 3:10-cr-01676-GT-1

  v.
                                                 MEMORANDUM *
JERRY LUIS CRUZ-LOPEZ,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                Gordon Thompson, Senior District Judge, Presiding

                             Submitted March 9, 2012 **
                                Pasadena, California

Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.

       Jerry Luis Cruz-Lopez appeals his above-Guidelines sentence of 36 months’

imprisonment for using false documents to obtain entry into the United States in




        *
             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).
violation of 18 U.S.C. § 1546(a). We have jurisdiction under 28 U.S.C. § 1291 and

affirm.

      The United States charged Cruz with unlawful entry after deportation in

violation of 8 U.S.C. §§ 1326(a) and (b). It then filed a superseding information

charging Cruz with using false documents to obtain entry in violation of 18 U.S.C.

§ 1546(a). Cruz pled guilty to the § 1546(a) charge.

      A probation officer prepared a presentence report detailing Cruz’s lengthy

criminal and immigration history. Cruz had 21 criminal history points, which

translated to a criminal history category of VI—the highest in the U.S. Sentencing

Guidelines table. U.S.S.G. Ch. 5, Pt. A. The Guidelines’ recommended range of

imprisonment was 18 to 24 months. See U.S.S.G. § 2L2.2. The presentence report

then addressed “factors that may warrant departure.” It noted that Cruz “was

originally charged with a violation of 8 U.S.C. § 1326, and had he been convicted

of that offense, his guideline range of imprisonment would have been 77 to 96

months.” In calculating this hypothetical sentence, the presentence report

apparently relied on the assumption that Cruz, if he had been convicted of and

sentenced for violating § 1326, would have received a 16-level enhancement under

the unlawful entry Guideline for deportation after a “drug trafficking” conviction.

See U.S.S.G. § 2L1.2(b)(1)(A)(I). The report recommended a four-point upward


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departure for uncharged conduct under Guidelines § 5K2.21, resulting in a

recommended range of 30 to 37 months’ imprisonment.

      At the sentencing hearing, the judge stated that he had considered the

document fraud Guideline’s recommended range, the 18 U.S.C. § 3553(a) factors,

and all the factors discussed in the presentence report in determining the sentence.

He expressed agreement with the report’s upward departure recommendation. The

government then clarified for the judge that the documents justifying the 16-point

enhancement in the hypothetical § 1326 sentence were not available. The probation

officer in turn explained that the judge could alternatively achieve the above-

Guidelines sentence through an upward variance.

      The judge said, “All right,” and then read out loud the sections of the

presentence report stating that the § 1546 offense was Cruz’s second consecutive

federal offense; that he committed it within days of his release from prison; that he

had 21 criminal history points; that he has a history of committing a serious

offense, being ordered removed, and then committing another serious offense; that

the justice system has not instilled in Cruz an adequate level of deterrence; and that

the Guidelines range of 18 to 24 months did not capture the full scope of the

offense and was not likely to meet the § 3553(a) objectives. He expressed

agreement and ordered a four-point upward departure and a 36-month sentence.


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      On appeal, Cruz argues that the district court committed procedural error by

making reference to, and giving “undue weight to,” the hypothetical unlawful entry

sentence of 77 to 96 months, which was based on “unsupported assumptions,” and

which the court “used to . . . justify a substantial upward departure” from the

document fraud Guideline range. We do not review the kind of error Cruz alleges

here as part of our review for procedural error. Where, as here, “a district court has

framed its analysis in terms of a downward or upward departure, we will treat such

so-called departures as an exercise of post-Booker discretion to sentence a

defendant outside of the applicable [G]uidelines range,” which is “subject to a

unitary review for [substantive] reasonableness, no matter how the district court

styles its sentencing decision.” United States v. Mohamed, 459 F.3d 979, 987 (9th

Cir. 2006); see also United States v. Lichtenberg, 631 F.3d 1021, 1027 n.8 (9th Cir.

2011); United States v. Ellis, 641 F.3d 411, 420-21 (9th Cir. 2011); United States

v. Tankersley, 537 F.3d 1100, 1113-14 (9th Cir. 2008).

      “[T]he substantive reasonableness of a sentence—whether objected to or not

at sentencing—is reviewed for abuse of discretion.” United States v. Autery, 555

F.3d 864, 871 (9th Cir. 2009). “For a non-Guidelines sentence, we are to ‘give due

deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance,’” and “[w]e may not reverse just because we


                                           4
think a different sentence is appropriate.” United States v. Carty, 520 F.3d 984, 993

(9th Cir. 2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).

In determining a sentence’s substantive reasonableness, we consider “the totality of

the circumstances, including the degree of variance for a sentence imposed outside

the [G]uidelines range.” Id. “A substantively reasonable sentence is one that is

‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s sentencing

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

§ 3553(a)).

      As in Ellis, here, “[u]ltimately, [Cruz]’s . . . objections to the reasons the

district court gave for ‘departing’ upward are beside the point. The question for our

purposes is whether a moderately above-Guidelines sentence for a defendant who”

committed his second consecutive federal offense within days of his release from

federal prison, who has a history of committing serious offenses and being ordered

removed, only to be arrested on another serious offense, who had 21 criminal

history points—well above the number needed to put him in the highest criminal

history category—and in whom the criminal justice system has evidently not yet

instilled an adequate level of deterrence “is reasonable under the broad discretion

afforded the district court.” Ellis, 641 F.3d at 423. It is. The district judge did not

abuse his discretion in concluding that a shorter term of 18 to 24 months would not


                                            5
meet the sentencing objectives of § 3553(a)—specifically, “to promote respect for

the law” and “to afford adequate deterrence to criminal conduct.” 18 U.S.C.

§ 3553(a)(2)(A), (a)(2)(B). A review of the record does not generate “a definite

and firm conviction that the district court committed a clear error of judgment in

the conclusion it reached upon weighing the relevant factors.” United States v.

Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009).

      AFFIRMED.




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