FILED

NOT FOR PUBLICATION

FEB 28 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10273

Plaintiff-Appellee, DC No. CR 16-0783 CKJ

v.

ESAU ROSAS-DOMINGUEZ, AKA Esau MEMORANDUM* Rosas,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted February 7, 2018 San Francisco, California

Before: THOMAS, Chief Judge, and TASHIMA and CHRISTEN, Circuit Judges.

Defendant Esau Rosas-Dominguez appeals the 33-month sentence and 3-

year term of supervised release that he received after pleading guilty to unlawful

reentry under 8 U.S.C. § 1326(a), enhanced by § 1326(b)(1). He argues that the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. district court committed procedural error and that his sentence is substantively

unreasonable.

1. Rosas-Dominguez did not argue below that the district court

committed procedural error. We therefore review for plain error. United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 & n.3 (9th Cir. 2010).

To establish plain error, (1) “there must be an error or defect” that has not

been waived; (2) “[the legal error] must be clear or obvious, rather than subject to

reasonable dispute”; (3) “[the error] must have affected the appellant’s substantial

rights, which in the ordinary case means he must demonstrate that it ‘affected the

outcome of the district court proceedings’”; and (4) if these three prongs are met,

this court should exercise discretion to remedy the error only if it “‘seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.’”

Puckett v. United States, 556 U.S. 129, 135 (2009) (alteration in original) (quoting

United States v. Olano, 507 U.S. 725, 732–36 (1993)).

We reject Rosas-Dominguez’s arguments that the district court erred either

by failing to use the 2016 Guidelines Manual or by using an incorrect benchmark

from the 2015 Guidelines Manual. “A district court properly applies the version of

the Sentencing Guidelines in effect at the time of sentencing, unless doing so

would violate the ex post facto clause.” United States v. Thomsen, 830 F.3d 1049,

2 1071 (9th Cir. 2016). “[T]here is an ex post facto violation when a defendant is

sentenced under Guidelines promulgated after he committed his criminal acts and

the new version provides a higher applicable Guidelines sentencing range than the

version in place at the time of the offense.” Peugh v. United States, 569 U.S. 530,

533 (2013).

The district court correctly identified that the 2016 Guidelines Manual in

effect at the time of sentencing provided a higher applicable sentencing range than

did the 2015 Guidelines Manual in effect at the time of Rosas-Dominguez’s reentry

offense. The district court therefore did not err in using the 2015 Guidelines

Manual to avoid an ex post facto violation. After selecting the 2015 Guidelines

Manual, the district court identified and used as its benchmark the appropriate 8-14

month range that applied to Rosas-Dominguez under that version. Because the

record reflects that the district court used this 8-14 month range as the starting

point, and remained cognizant of that range during sentencing, there was no error.

See United States v. Burgum, 633 F.3d 810, 812–13 (9th Cir. 2011).

In light of this determination, we reject Rosas-Dominguez’s argument that

the district court plainly erred by failing to consult the 2016 Guidelines Manual. If

an earlier version of the Guidelines Manual is used to avoid an ex post facto

violation, that version is to be used in its entirety. See Thomsen, 830 F.3d at 1071;

3 see also U.S.S.G. § 1B1.11(b)(1)–(2) (2015). After a district court determines that

an earlier version must be used, nothing requires it to consult a substantive

amendment found in a later version of the advisory Guidelines. See United States

v. Rising Sun, 522 F.3d 989, 997 (9th Cir. 2008) (citing U.S.S.G. § 1B1.11(b)(2)).

Amendment 802 substantively changed the level of enhancement applicable to a

defendant who was previously deported after a felony conviction. Compare

U.S.S.G. § 2L1.2(b)(1) (2015), with U.S.S.G § 2L1.2(b)(2) (2016). Rosas-

Dominguez has thus not shown any error in the district court’s failure to consider

the substance or rationale of Amendment 802, let alone one that is clear and

beyond dispute.

Because the district court’s sentencing remarks and Statement of Reasons

indicate that it considered the factors under 18 U.S.C. § 3553(a), Rosas-

Dominguez’s sentencing arguments, and adequately explained its reasons for

imposing an upward variance, we find no procedural error. See United States v.

Carty, 520 F.3d 984, 991–93 (9th Cir. 2008) (en banc).

2. We review the substantive reasonableness of a sentence for abuse of

discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). We do not

presume that a sentence outside the Guidelines range is unreasonable; instead, we

“give due deference to the district court’s decision that the § 3553(a) factors, on a

4 whole, justify the extent of the variance.” Carty, 520 F.3d at 993 (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)).

Upon reviewing the record here, we are not left with “a definite and firm

conviction that the district court committed a clear error of judgment in the

conclusion it reached upon weighing the relevant factors.” United States v.

Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009). Unlike in Amezcua-

Vasquez, the district court here came to the reasoned conclusion that, despite

compelling mitigating evidence about Rosas-Dominguez’s work in Mexico and the

age of his prior conviction, a sentence of 33 months was required given the nature

and seriousness of this prior conviction for aggravated kidnapping, and in order to

promote respect for the law and protect the community. The above-Guidelines

sentence of 33 months is substantively reasonable in light of the § 3553(a) factors

and the totality of the circumstances. Gall, 552 U.S. at 51.

3. For similar reasons, we reject Rosas-Dominguez’s argument that the

imposition of a 3-year term of supervised release was unreasonable. While the

Guidelines state that a district court should not “ordinarily” impose supervised

release if the defendant is a deportable alien, they also provide that supervised

release may be appropriate if it will provide added deterrence or protection.

U.S.S.G. § 5D1.1(c), cmt. n.5 (2015); see also 18 U.S.C. § 3583(c). The district

5 court exercised appropriate discretion in imposing a 3-year term based on concerns

about the danger Rosas-Dominguez posed to the public and the need for

deterrence. In light of the district court’s particularized remarks at sentencing

about these concerns, which find support in the record, we conclude that the 3-year

term of supervised release is reasonable. See United States v. Valdavinos-Torres,

704 F.3d 679, 692–93 (9th Cir. 2012).

AFFIRMED.

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