UNITED STATES v. TORRES GONZALEZ (2019)

MEMORANDUM **

Jorge Torres-Gonzalez appeals from the district court’s judgment and challenges the 68-month sentence imposed following his jury-trial 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.

Torres-Gonzalez first contends that the district court’s pre-trial ruling that it would deny a fast-track departure under U.S.S.G. § 5K3.1 violated his constitutional rights and unfairly compelled him to go to trial. However, the district court has discretion to grant or deny a fast-track departure, and the record refutes Torres-Gonzalez’s suggestion that the district court’s reason for denying the reduction was improper. See United States v. Rosales-Gonzales, 801 F.3d 1177, 1184 (9th Cir. 2015) (district court may exercise its discretion to deny a fast-track reduction based on the defendant’s criminal and immigration history). Moreover, because Torres-Gonzalez ultimately elected to go to trial, the district court properly concluded that he was ineligible for the departure. See United States v. Heredia, 768 F.3d 1220, 1237 (9th Cir. 2014) (fast-track departures are available to defendants “who quickly plead guilty”).

Torres-Gonzalez also contends that the district court misapplied U.S.S.G. § 3E1.1 and violated his constitutional rights by denying an acceptance of responsibility adjustment after indicating pre-trial that he would receive the adjustment. However, the court’s statement that Torres-Gonzalez would receive the adjustment was made before he elected to withdraw his guilty plea and go to trial. Contrary to Torres-Gonzalez’s argument, the record reflects that the court thereafter denied the adjustment, not on the basis that Torres-Gonzalez went to trial, but rather because he contested his factual guilt at trial and did not show contrition at sentencing. The court’s finding that these actions reflected that Torres-Gonzalez did not accept responsibility for his offense was not clearly erroneous. See U.S.S.G. § 3E1.1 cmt. n.2; United States v. Rodriguez, 851 F.3d 931, 949 (9th Cir. 2017) (acceptance adjustment “is not intended to apply to a defendant ․ who puts the government to its burden of proof at trial by denying the essential factual elements of guilt” (internal quotation marks omitted)).

Lastly, Torres-Gonzalez contends that the sentence is substantively unreasonable. The district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The 68-month sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including Torres-Gonzalez’s criminal and immigration history. See Gall, 552 U.S. at 51, 128 S.Ct. 586.

AFFIRMED.