                                                                            FILED
                           NOT FOR PUBLICATION                              NOV 23 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10174

              Plaintiff - Appellee,              D.C. No. 4:13-cr-00767-CKJ-JR-1

  v.
                                                 MEMORANDUM*
JAIME ESPINOZA-MEDINA, AKA
Jaime Espinosa-Medina,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                          Submitted November 17, 2015**
                             San Francisco, California

Before: McKEOWN, RAWLINSON, and DAVIS,*** Circuit Judges.



        *
             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).
        ***
            The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.

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      Jaime Espinoza-Medina appeals his sentence of 36 months’ imprisonment

for illegal reentry after deportation in violation of 8 U.S.C. § 1326. Espinoza-

Medina asserts that the district court judge committed substantive and procedural

error when she applied an eight-level sentencing departure.



      1. When reviewing a sentence imposed by a district court, we first determine

whether procedural error occurred, and then review the sentence for substantive

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

banc). We must give “significant deference” to a district court’s sentencing

decision, reviewing for abuse of discretion. United States v. Ressam, 679 F.3d

1069, 1086 (9th Cir. 2012) (en banc), as amended.



      2. The district court judge did not rely on clearly erroneous facts, and thus

did not commit procedural error. See United States v. Vanderwerfhorst, 576 F.3d

929, 935-36 (9th Cir. 2009). Rather, the district court judge cited only the facts

from Espinoza-Medina’s state court plea that she found reliable. The district court

judge also permissibly relied on Espinoza-Medina’s narcotics arrest. See id. at 935

(explaining that “hearsay evidence of unproved criminal activity not passed on by a

court . . . may be considered in sentencing”) (citations and alteration omitted).

                                           2
      3. The district court judge adequately explained her reasons for departing

from the Guidelines Sentencing Range. See United States v. Ellis, 641 F.3d 411,

422 (9th Cir. 2011). Prior to imposing Espinoza-Medina’s sentence, the district

court judge considered the parties’ arguments on whether any departures were

appropriate, and the parties also submitted sentencing memoranda. A district court

judge does not commit procedural error when she listens to arguments on the

applicability of departures and considers the arguments against the backdrop of the

§ 3553(a) factors. See Carty, 520 F.3d at 995.



      4. The 22-month increase resulting from the departure did not render

Espinoza-Medina’s sentence substantively unreasonable. See, e.g., United States v.

Mohamed, 459 F.3d 979, 988-89 (9th Cir. 2006) (affirming a sentence where

departures resulted in an increase of over 40 months). Here, the judge articulated

that a four-level enhancement did not capture the seriousness of an offense that

involved a 19-year-old girl being shot multiple times. In addition, the Sentencing

Guidelines calculation did not account for the narcotics arrest at all. It is within a

district court judge’s discretion to apply departures when the judge is of the view

that the seriousness of the offense is not captured by the Sentencing Guidelines




                                            3
enhancement, and when a defendant’s criminal history is not accurately reflected.

See Ellis, 641 F.3d at 420-21.

      It was within the district court judge’s discretion to apply sentencing

departures rather than increasing the criminal history category. See id. at 420-22.

The mitigating factors urged by Espinoza-Medina did not render his sentence

substantively unreasonable. See id. at 423 (holding a sentence substantively

reasonable where the district court judge engaged in a “rational and meaningful

consideration” of the § 3553(a) factors) (citation omitted).



      5. “We REMAND only for the district court to correct the judgment of

conviction by removing the reference to 8 U.S.C. § 1326(b).” United States v.

Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (citation omitted).



      AFFIRMED and REMANDED.




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