                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 19 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50101

                Plaintiff-Appellee,             D.C. No. 3:16-cr-02756-LAB

 v.
                                                MEMORANDUM *
CARLOS GUTIERREZ-TORRES,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                           Submitted January 16, 2018**

Before:      REINHARDT, TROTT, and HURWITZ, Circuit Judges.

      Carlos Gutierrez-Torres appeals from the district court’s judgment and

challenges the 33-month sentence imposed following his guilty-plea conviction for

being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.

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

      Gutierrez-Torres contends that the district court improperly double counted

      *
             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).
when it imposed a four-level enhancement for a prior illegal reentry offense and

then used that offense to justify a lesser fast-track departure than that

recommended by the parties and a high-end sentence. The court did not abuse its

discretion. See United States v. Christensen, 732 F.3d 1094, 1100 (9th Cir. 2013).

“Impermissible double counting occurs when one part of the Guidelines is applied

to increase a defendant’s punishment on account of a kind of harm that has already

been fully accounted for by application of another part of the Guidelines.” United

States v. Stoterau, 524 F.3d 988, 1001 (9th Cir. 2008) (internal quotations

omitted). Here, the district court correctly applied a four-level enhancement based

on Gutierrez-Torres’s prior illegal reentry conviction, see U.S.S.G.

§ 2L1.2(b)(1)(A) (2016), and then decreased Gutierrez-Torres’s base offense level

under U.S.S.G. § 5K3.1. The court did not double count or otherwise err by

considering Gutierrez-Torres’s prior immigration offense in determining to grant

only a one-level reduction and impose a high-end sentence. See United States v.

Rosales-Gonzales, 801 F.3d 1177, 1184 (9th Cir. 2015) (under 18 U.S.C.

§ 3553(a), district court may consider defendant’s immigration history to

determine whether to grant fast-track reduction and the proper sentence);

Christensen, 732 F.3d at 1101 (in selecting the sentence, the court may consider

factors already accounted for in the Guidelines calculation). Nor does the record

support Gutierrez-Torres’s assertion that the court manipulated the Guidelines


                                           2                                  17-50101
calculation to create the sentencing range it preferred. See Rosales-Gonzales, 801

F.3d at 1181.

      Gutierrez-Torres also argues that the district court procedurally erred by

failing to address his argument about impermissible double counting and by failing

to explain the sentence adequately. The district court did not plainly err. See

United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The

court addressed Gutierrez-Torres’s arguments and adequately explained its reasons

for the sentence. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en

banc). Finally, the 33-month sentence is substantively reasonable in light of the 18

U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including

the need to deter. See Gall v. United States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




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