United States v. Ricardo Cordero-Ontiveros

MEMORANDUM

Defendant-Appellant Ricardo Cordero-Ontiveros (“Cordero”), a citizen of Mexico, appeals his 24-month sentence for being a deported alien found in the United States under 8 U.S.C. § 1826 . For the reasons outlined below, we affirm the district court.

Under de novo review, United States v. Thomas, 355 F.3d 1191, 1194 (9th Cir.2004), the district court did not violate Federal Rule of Criminal Procedure 32. The district court resolved any factual dispute about alien smuggling when it definitively ruled that “there is no proof of alien smuggling.” After this ruling, the court did not again refer to alien smuggling. The court also explicitly stated that it accepted “at face value” Cordero’s explanation that he crossed the border for the sole purpose of finding work to support his family. The court said, “I take your word for it that [Cordero’s] reasons are to find a job and find opportunity.”

Cordero claims that the district court abused its discretion by basing its sentencing decision on unreliable allegations of alien smuggling. Because the district court explicitly found no evidence of alien smuggling, and therefore did not base its sentence on such evidence, Cordero’s…