United States v. Jose Larios-Avila

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50015 Plaintiff-Appellee, D.C. No. 3:18-cr-04079-LAB-1 v. JOSE LARIOS-AVILA, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted August 13, 2019** Pasadena, California Before: CALLAHAN, FISHER,*** and CHRISTEN, Circuit Judges. Defendant-Appellant Jose Larios-Avila appeals his sentence, following a * 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). *** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. guilty plea, for illegal entry into the United States in violation of 8 U.S.C. § 1325.1 We have jurisdiction under 28 U.S.C. § 1291. We affirm. “We review [Larios-Avila]’s sentencing challenges to the district court’s interpretation of the Sentencing Guidelines de novo . . . and to the application of the Sentencing Guidelines for abuse of discretion.” United States v. Lloyd, 807 F.3d 1128, 1176 (9th Cir. 2015); see also Gall v. United States, 552 U.S. 38, 49 (2007). 1. Larios-Avila argues the district court committed reversible error by using a “reasonableness” standard during sentencing instead of the “sufficient, but not greater than necessary” standard (known as the “parsimony principle”) under 18 U.S.C. § 3553(a). In sentencing Larios-Avila, the court took into account his lengthy criminal record, high number of aliases and encounters with immigration officials, and his life history, as well as the guideline range and the parties’ recommended sentence. Although the court used the word “reasonable” in reference to determining a guideline range or the sentence to be imposed, “taken in context it is plain that the judge so understood” the parsimony principle for imposing a sentence because the court clearly looked to § 3553(a) factors—which explicitly sets forth the parsimony principle—which it applied the requisite 1 The facts and procedural history are known to the parties and thus used herein only as necessary to resolve the issues. 2 sentencing factors. Rita v. United States, 551 U.S. 338, 358 (2007) (finding that the judge’s use of the word “appropriate” for describing the imposed sentence was “of course, . . . not the legal standard for imposition of sentence, . . . taken in context it is plain that the judge so understood”); see also United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc) (noting that district judges are presumed to know the law). Larios-Avila further argues that the district court’s contemplation of a shorter sentence shows that it failed to apply the parsimony principle. But the district court observed that Larios-Avila had not been deterred by previous sentences, and the shorter sentence was to be accompanied by a five- year period of ...

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