                                                                               FILED
                            NOT FOR PUBLICATION                                  OCT 23 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50453

              Plaintiff - Appellee,              D.C. No. 3:13-cr-02000-LAB-1

  v.
                                                 MEMORANDUM*
JOSE HERNANDEZ-HERNANDEZ,

              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.

       Jose Hernandez-Hernandez appeals the sentence imposed following his

guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326. He

contends that the district court abused its discretion when it rejected his Rule


        *
             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.
11(c)(1)(B) fast track plea agreement, recalculated the sentencing guidelines range,

and imposed a term of incarceration longer than was recommended by the

government, but within the recalculated guidelines range. We have jurisdiction

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

      The district court’s rejection of Hernandez-Hernandez’s fast-track plea

agreement was not an abuse of discretion. United States v. Carty, 520 F.3d 984,

993 (9th Cir. 2008). 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.”).

Although the district judge accorded substantial deference to the government’s

recommendation of a four-level reduction in offense level in exchange for his fast-

track plea because Congress had approved that departure, he rejected that




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recommendation due to an individualized consideration of Hernandez-Hernandez’s

criminal and immigration history.1

      The district court disagreed with the government that Hernandez-Hernandez

was an appropriate candidate for fast-track consideration in light of the criteria set

forth by the Department of Justice in a memorandum dated January 31, 2012 by

James M. Cole. Hernandez-Hernandez had two previous convictions under 8

U.S.C. § 1326, at least one of which had been through the fast-track program. The

offense at issue violated a special condition of supervised release with respect to

the most recent 8 U.S.C. § 1326 conviction. Additionally, the probation report

revealed that Hernandez-Hernandez had a lengthy criminal history, which included

attempted illegal possession and use of controlled substances, assault, theft, and

numerous removals, including six deportations. After recalculating the guidelines

range, the district court correctly found an offense level of ten and criminal history

category of five, for a sentencing range of twenty-one to twenty-seven months.




      1
        The sentencing transcript makes clear that the district judge did not apply a
“blanket policy” against fast-track plea agreements in this case. U.S. 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).


                                           3
      Turning to the factors identified in 18 U.S.C. § 3553(a), the district judge

considered both aggravating and mitigating circumstances, including Hernandez-

Hernandez’s immigration record of prior removals and his statement at the hearing

that his repeated reentries stemmed from a desire to help his family after his

father’s passing. The district judge did not abuse his discretion, however, in

determining that a term of incarceration of twenty-four 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). He reasoned that a term of twenty-

four months would most appropriately deter future criminal conduct while

protecting the public and promoting respect for the law.

      Nor did the district court plainly err in finding that Hernandez-Hernandez

had been warned not to return to the United States illegally. Hernandez-Hernandez

had twice been convicted under 18 U.S.C. § 1326, and his term of supervised

release included a special condition prohibiting him from reentering the United

States illegally. Indeed, Hernandez-Hernandez’s supervised release was subject to

revocation for violating this condition.

      AFFIRMED.




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