UNITED STATES v. MURILLO CAMACHO (2021)

MEMORANDUM **

Jose Antonio Murillo-Camacho appeals from the district court's judgment and challenges the 24-month sentence imposed following his guilty-plea conviction for unlawful attempted entry by an alien, in violation of 8 U.S.C. § 1325(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Murillo-Camacho first contends that the district court erred by comparing him to defendants convicted of illegal reentry under 8 U.S.C. § 1326 when determining his sentence. However, the district court's reference to another defendant's § 1326 proceeding was made in the context of a discussion regarding the government's decision not to charge Murillo-Camacho with illegal reentry. Further, the district court properly considered Murillo-Camacho's prior sentences for immigration offenses. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B).

Murillo-Camacho next contends that the district court relied on clearly erroneous facts by assuming that Murillo-Camacho's prior removal order was valid and thereby implicitly applying a 10-level enhancement to his base offense level. He maintains that, at a minimum, remand is warranted for the district court to clarify that it did not base the sentence on an incorrect Guidelines range. The record makes clear, however, that the district court knew the applicable Guidelines range. It nevertheless determined that an above-Guidelines sentence was warranted in light of Murillo-Camacho's immigration and criminal history, which included prior sentences of 46 and 57 months for immigration offenses. In light of these circumstances, and the 18 U.S.C. § 3553(a) sentencing factors, the sentence is substantively reasonable. See United States v. Burgos-Ortega, 777 F.3d 1047, 1056-57 (9th Cir. 2015).

AFFIRMED.