United States v. Fabian Santillan

MEMORANDUM

Fabian Santillan appeals from the district court’s judgment and challenges the 16-month sentence imposed following his guilty-plea conviction for attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Santillan contends that the district court erred by refusing to grant the government’s motion for a recommended fast-track departure under U.S.S.G. § 5K3.1. “In analyzing challenges to a court’s upward and downward departures ... under Section 5K, we do not evaluate them for procedural correctness, but rather, as part of a sentence’s substantive reasonableness.” United States v. Ellis, 641 F.3d 411, 421 (9th Cir.2011). The 16-month sentence is substantively reasonable in light of the 18 U.S.C. § 3553 (a) factors and the totality of the circumstances, including Santillan’s criminal and immigration history. See Gall v. United States, 552 U.S. 38, 51 , 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007).

Santillan also contends that the district court failed to use the correctly calculated Guidelines as a starting point because it had already arrived at its preferred sentence before calculating the Guidelines…