                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 15 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50284

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00745-ABC-1

  v.
                                                 MEMORANDUM*
OMAR MORA-RIVERA, AKA Omar
Mora, AKA Omar Jair Mora, AKA Omar
Jair Mora-Rivera, AKA Omar Mora
Rivera,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Audrey B. Collins, District Judge, Presiding

                             Submitted July 10, 2014**
                               Pasadena, California

Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.

       Omar Mora-Rivera appeals from the 57-month sentence imposed following

his guilty-plea conviction for being a deported alien found unlawfully in the United

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
States in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      The district court did not plainly err by including Mora-Rivera’s forgery

conviction in the calculation of his criminal history category. On this record we

conclude that Mora-Rivera’s forgery crime did not occur in the course of

attempting to avoid detection or responsibility for the illegal reentry offense.

Mora-Rivera himself stated that he obtained the forged documents “after [his]

arrival” in the United States because he “sought employment.” When stopped by

police, Mora-Rivera volunteered that he had counterfeit documents in his wallet.

These actions are not consistent with the actions of someone seeking to avoid

detection for remaining in the country illegally. There was no error, let alone

“error that is so clear-cut, so obvious, a competent district judge should be able to

avoid it without benefit of objection.” United States v. Gonzalez-Aparicio, 663

F.3d 419, 428 (9th Cir. 2011) (citing United States v. Turman, 122 F.3d 1167,

1170 (9th Cir. 1997)).

      We reject Mora-Rivera’s argument that, under Kimbrough v. United States,

552 U.S. 85 (2007), United States Sentencing Guideline § 2L1.2 lacks an empirical

basis and is not entitled to the same weight as the typical Guideline. The policy

behind the enhancement is sound. See United States v. Salazar-Mojica, 634 F.3d


                                           2
1070, 1074 (9th Cir. 2011); United States v. Ramirez-Garcia, 269 F.3d 945,

947–48 (9th Cir. 2001). Thus, the district court’s reliance on § 2L1.2 was not an

abuse of discretion. United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011)

(recognizing that “district courts are not obligated to vary from the . . . Guidelines

on policy grounds if they do not have, in fact, a policy disagreement with them.”).

      Mora-Rivera also claims that § 2L1.2 impermissibly double counts his prior

arson conviction. But this argument has been squarely rejected. See United States

v. Garcia–Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (per curiam)

(concluding that the district court did not err by using the defendant’s prior

conviction as a basis for the sixteen-point increase pursuant to § 2L1.2 and in

calculating the defendant’s criminal history score).

      Finally, Mora-Rivera contends that his 57-month sentence is substantively

unreasonable in light of the afore-mentioned Kimbrough flaws in § 2L1.2, the

staleness of his 13-year-old arson conviction, the disparity between his sentence

and a typical fast-track sentence, and his ties to the United States. We conclude

that, in light of the totality of the circumstances and the sentencing factors set forth

in 18 U.S.C. § 3553(a), the district court did not abuse its discretion by imposing a

low-end, within-Guidelines sentence. See Gall v. United States, 552 U.S. 38, 51

(2007). The district court weighed each of the necessary § 3553(a) factors,


                                            3
discussed the fact that Mora-Rivera’s prior sentence “was not sufficient to deter

him,” and made clear that it viewed Mora-Rivera’s violation as “a serious offense

and . . . a repeat offense.” Nothing in Mora-Rivera’s argument or the record leads

us to “a definite and firm conviction that the district court committed a clear error

of judgment in the conclusion it reached upon weighing the relevant factors.”

United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009).

      AFFIRMED.




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