                                                                               FILED
                           NOT FOR PUBLICATION                                 MAR 05 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50402

              Plaintiff - Appellee,              D.C. No. 3:13-cr-02150-LAB-1

  v.
                                                 MEMORANDUM*
JAVIER URIBE,

              Defendant - Appellant.


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

                            Submitted January 6, 2015**
                               Pasadena, California

Before: KOZINSKI, WARDLAW, and W. FLETCHER, Circuit Judges.

       Javier Uribe appeals the district court’s imposition of a 30-month sentence

following his guilty plea to violating 8 U.S.C. § 1326. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, 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).
      1. Reviewing de novo, United States v. Kiefer, 760 F.3d 926, 929 (9th Cir.

2014), we conclude that the district court did not err in calculating the applicable

18-24 month Guidelines range. The court properly increased Uribe’s offense level

based on a 1991 aggravated felony conviction for receiving stolen property, despite

the conviction’s age. See U.S.S.G. § 2L1.2(b)(1)(C) & cmt. 3 (increasing the

offense level by 8 for an aggravated felony, “without regard to the date of

conviction”); 8 U.S.C. § 1101(a)(43)(G) (including offenses for “receipt of stolen

property” within the definition of aggravated felony).

      Nor did the district court abuse its discretion by granting a two-level

downward departure, instead of the four-level departure the parties recommended,

pursuant to Uribe’s “fast track” plea. See U.S.S.G. § 5K3.1 (“Upon motion of the

Government, the court may depart downward not more than 4 levels . . . .”

(emphasis added)); see also United States v. Ellis, 641 F.3d 411, 421 (9th Cir.

2011) (explaining that discretionary departures under § 5K of the Guidelines are

reviewed for substantive reasonableness, not for procedural error); United States v.




                                          2
Hurt, 345 F.3d 1033, 1036 (9th Cir. 2003) (holding that a district court is not

bound by the parties’ sentencing recommendations).1

      2. The district court did not abuse its discretion by imposing a sentence 6

months above the upper end of the Guidelines range. See United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc). At sentencing, the district court

considered the 18 U.S.C. § 3553(a) sentencing factors and Uribe’s recidivism,

focusing particularly on his multiple drunk driving convictions and his previous

24-month sentence for violating 8 U.S.C. § 1326. We cannot say that imposing a

harsher sentence for Uribe’s second conviction under the same statute, in an effort

to deter future crime and promote respect for the law, was unreasonable. See

United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (explaining

that the “weight to be given the various factors in a particular case is for the

discretion of the district court”). The district court also explicitly considered the

staleness of Uribe’s aggravated felony conviction and calibrated the upward

variance accordingly.




      1
        Uribe claims that the district court erroneously placed him in criminal
history category IV (applicable to defendants with seven, eight, or nine criminal
history points), but Uribe does not explain which, if any, of the seven criminal
history points relied upon by the district court should not have been counted.
Accordingly, we have no basis for concluding that the district court erred.

                                           3
      3. Uribe’s claim that his conviction and sentence must be vacated because

he was not charged with violating 8 U.S.C. § 1326(b)(2) is meritless. See

Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998) (“We conclude

that [8 U.S.C. § 1326(b)(2)] is a penalty provision, which simply authorizes a court

to increase the sentence for a recidivist. It does not define a separate crime.

Consequently, neither the statute nor the Constitution requires the Government to

charge the factor that it mentions, an earlier conviction, in the indictment.”).2

      4. Applying plain error review, we affirm Uribe’s conviction and sentence

despite the possibility that he misunderstood the maximum sentence he was facing

as a result of his guilty plea, in violation of Federal Rule of Criminal Procedure

11(b)(1)(H). See United States v. Vonn, 294 F.3d 1093, 1094 (9th Cir. 2002). To

be sure, Uribe was told before accepting the plea deal that he faced a maximum

possible sentence of 10 years’ imprisonment, see 8 U.S.C. § 1326(b)(1)

(authorizing a 10-year maximum when the defendant has a prior non-aggravated

felony conviction), when in fact he faced a maximum possible sentence of 20

years’ imprisonment, see 8 U.S.C. § 1326(b)(2) (authorizing a 20-year maximum

when the defendant has a prior aggravated felony conviction). But the error was

      2
        Uribe’s argument that Alleyne v. United States, 133 S. Ct. 2151 (2013),
overruled Almendarez-Torres is explicitly foreclosed by Alleyne itself. See 133 S.
Ct. at 2160 n.1.

                                           4
entirely harmless because Uribe was sentenced well below the 10-year maximum

sentence he believed he was facing, and he has never asserted that he would not

have accepted the agreement had he known that he faced a statutory maximum

sentence of 20 years. See Vonn, 294 F.3d at 1093-94 (reviewing a district court’s

Rule 11 violation for plain error and affirming because the defendant did not suffer

any prejudice).

      AFFIRMED.




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