United States v. Nicolas Rubio

MEMORANDUM

Nicolas Villagran Rubio appeals from the district court’s judgment and challenges the 85-month sentence and five-year term of supervised release imposed following his guilty-plea conviction for conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

1. The district court did not plainly err in considering Rubio’s inability to pay restitution in discussing various sentencing factors. See United States v. Benford, 574 F.3d 1228, 1231 (9th Cir.2009). At the sentencing hearing, the district court said, “I am looking at the harm that he has done to people, and I don’t think any of this money will ever get repaid. I really don’t. I think people are simply going to be out of hundreds of thousands of dollars.” Rubio contends the district court erred by considering his inability to pay restitution as an aggravating factor in his sentencing. See United States v. Burgum, 633 F.3d 810, 816 (9th Cir.2011) (holding that a district court plainly errs when it explicitly invokes inability to pay restitution as an aggravating factor, and “improperly inject[s] socioeconomic status into the sentencing calculus”).…