                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                               OCT 23 2014

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

UNITED STATES OF AMERICA,                         No. 13-50419

              Plaintiff - Appellee,               D.C. No. 3:13-cr-01736-LAB-1

  v.
                                                  MEMORANDUM*
JAVIER LARA-RENTERIA,

              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.

       Javier Lara-Renteria 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 11(c)(1)(B) fast-track


        *
             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.
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 Lara-Renteria’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 the government’s




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recommendation due to an individualized consideration of Lara-Renteria’s criminal

and immigration history.1

      The district court disagreed with the government’s conclusion that Lara-

Renteria was an appropriate candidate for fast-track consideration given the criteria

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

James M. Cole. Lara-Renteria had a recent conviction under 8 U.S.C. § 1326, for

which he had violated the terms of supervised release with the offense at issue, and

for which he had received fast-track treatment. The probation report also revealed

Lara-Renteria’s extensive criminal history, which included burglary in the second

degree, possession of and carrying a concealed firearm, grand theft, and numerous

removals, including one based on his conviction for an aggravated felony.

Recalculating the guidelines range, the district judge correctly found an offense

level of thirteen and a criminal history category of five, for a sentencing range of

thirty to thirty-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).


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

considered Lara-Renteria’s immigration record of prior removals in aggravation,

and, in mitigation, his U.S. citizen family that resided in the United States

motivating Lara-Renteria’s repeated unlawful returns. The district judge did not

abuse his discretion in determining that a term of incarceration of thirty-six 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 thirty-six 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 Lara-Renteria had

previously been warned not to return to the United States illegally. Lara-Renteria

had 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 and requiring him to report to the probation officer within twenty-four

hours of any reentry. Indeed, his supervised release was subject to revocation for

violating these conditions.

      AFFIRMED.




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