                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 09 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50222

              Plaintiff - Appellee,              D.C. No. 3:14-cr-02356-GPC-1

 v.
                                                 MEMORANDUM*
JOSE GILES-RODRIGUEZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Gonzalo P. Curiel, District Judge, Presiding

                          Submitted December 7, 2015**
                              Pasadena, California

Before: PREGERSON, D.W. NELSON, and CALLAHAN, Circuit Judges.

      Jose Giles-Rodriguez (“Giles”) appeals his bench-trial convictions for

improper entry by an alien in violation of 8 U.S.C. § 1325 and reentry after




        *
             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).
removal in violation of 8 U.S.C. § 1326(a) and (b) and his subsequent sentence.

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

      Giles makes three contentions on appeal: (1) there was insufficient evidence

to support his convictions, (2) his sentence was substantively unreasonable, and (3)

the district court erred in imposing a term of supervised release without

considering that the sentencing guidelines now recommend no supervised release

for illegal entry cases, and thus the term constituted an upward departure or

variance requiring explanation.

      1. We review a claim of insufficient evidence de novo. United States v.

Atkinson, 990 F.2d 501, 503 (9th Cir. 1993) (en banc); United States v. Tucker, 641

F.3d 1110, 1118 (9th Cir. 2011). “We determine whether after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Tucker, 641 F.3d at 1118–1119 (quotations and citations omitted). The only

element of the charges Giles contested at trial was whether he knew he was in the

United States.

      A rational trier of fact could have found Giles knew he was in the United

States. The border patrol agent testified that he found Giles crouching in a bush.

The district court determined that the border patrol agent’s testimony was credible


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because it was corroborated by a second agent, a scope operator. It found Giles’s

testimony that he was standing self-serving and not credible, as it was surrounded

by an unusual story that he was goat herding for a friend only identified as

“Fernando.” The district court further found that Giles crouching in a bush

evidenced consciousness of guilt, and demonstrated that he knew he was in the

United States. Viewing the evidence in a light most favorable to the prosecution,

there was sufficient evidence to support Giles’s convictions.

      2. We review the substantive reasonableness of a sentence for an abuse of

discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

“[A] Guidelines sentence will usually be reasonable.” Id. at 994 (quotations

omitted). Giles’s sentencing guideline range was 15-21 months. The district court

evaluated the 18 U.S.C. § 3553(a) sentencing factors. It noted that there was

nothing unusual or aggravated with respect to the offense conduct, that Giles had

several previous serious offenses, that he had previously been deported and had not

been deterred from returning, and that Giles’s testimony was “incredible.” Then,

“[c]onsidering all of those circumstances,” the district court imposed a sentence of

19 months incarceration with 2 years of supervised release. The application and

explanation of the 18 U.S.C. § 3553(a) factors demonstrate that the district court

did not abuse its discretion.


                                          3
      3. Giles challenges the imposition of supervised release for the first time on

appeal. Thus, we review for plain error. United States v. Miqbel, 444 F.3d 1173,

1176 (9th Cir. 2014). Giles contends that because the guidelines discourage

supervised release where the defendant is a deportable alien, its imposition is an

upward departure. U.S.S.G. § 5D1.1(c) (“[t]he court ordinarily should not impose

a term of supervised release in a case in which . . . the defendant is a deportable

alien”). However, the commentary to the guidelines further states that “[t]he court

should . . . consider imposing a term of supervised release on such a defendant if

the court determines it would provide an added measure of deterrence and

protection.” U.S.S.G. § 5D1.1, cmt. n.5. The district court noted that Giles had

two previous immigration-related offenses and had received a 70-month sentence

and a 25-month sentence, which provided “some measure of what it would take to

convince Mr. Giles to avoid returning to the United States.” The district court

identified and explained the necessity of deterrence in Giles’s sentence, thus there

was no departure and no plain error. See United States v. Valdavinos-Torres, 704

F.3d 679, 693 (9th Cir. 2012).

      The district court’s judgment and sentence are AFFIRMED.




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