NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

APR 30 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, ) No. 17-10427 ) Plaintiff-Appellee, ) D.C. No. 4:16-cr-00370-RM-BGM-1 ) v. ) MEMORANDUM* )

LUCIANO MORENO-QUIDERA, )

) Defendant-Appellant. ) )

Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding

Submitted April 17, 2019** San Francisco, California

Before: FERNANDEZ, BEA, and N.R. SMITH, Circuit Judges.

Luciano Moreno-Quidera appeals his conviction and sentence for attempted

illegal reentry by a removed alien. See 8 U.S.C. § 1326(a). We affirm.

(1) Moreno was convicted after a bench trial. He asserts that the evidence

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). was insufficient to support his conviction. See United States v. Nevils, 598 F.3d

1158, 1161 (9th Cir. 2010) (en banc); see also United States v. Laursen, 847 F.3d

1026, 1031 (9th Cir. 2017). We disagree. He stipulated to the factual basis of

most of the elements of the offense, but contested his alienage. The district court

determined that he was not a citizen of the United States. The record demonstrates

that his birth certificate was from Mexico and that there were numerous occasions

where he had an opportunity to assert his citizenship in court, but did not do so and

often stated that he was not a United States citizen. See United States v.

Quintana-Torres, 235 F.3d 1197, 1200 (9th Cir. 2000); United States v. Sotelo, 109

F.3d 1446, 1448–49 (9th Cir. 1997). In addition, the district court did not credit

the testimony of his witnesses, who said he was born in the United States.

Questions of credibility are for the trier of fact, and on this record we cannot say

that the district court erred. See United States v. Rojas, 458 F.2d 1355, 1356 (9th

Cir. 1972) (per curiam). In short, the evidence was sufficient to support the

verdict.

(2) Moreno then asserts that the district court erred in fixing his sentence

at thirty-six months and in imposing a term of supervised release. See United

States v. Carty, 520 F.3d 984, 990–93 (9th Cir. 2008) (en banc).

At the district court, Moreno did not object to the United States Sentencing

2 Guidelines1 calculations; on the contrary, he specifically stated that the calculations

were correct. It is unclear whether he is attacking that calculation itself before us

or is merely alluding to the Guidelines to bolster his argument for a greater

downward variance. If the former, we review for plain error;2 if the latter, we

review for abuse of discretion.3 Because the district court did not plainly err in its

calculation and did not abuse its discretion when it imposed a substantially

reasonable sentence, we affirm.

The record before us shows that the district court was well aware of its

obligations under 18 U.S.C. § 3553(a), sufficiently considered Moreno’s various

arguments, and sufficiently explained its sentencing decision. See Carty, 520 F.3d

at 992. The district court did not unduly narrow the scope of its inquiry in deciding

upon Moreno’s sentence. See United States v. Vanderwerfhorst, 576 F.3d 929, 935

(9th Cir. 2009). It was well aware of his concerns about being removed to Mexico

1 All references to the United States Sentencing Guidelines herein are to the November 1, 2016, version unless otherwise noted. 2 See United States v. Blinkinsop, 606 F.3d 1110, 1114 & n.2 (9th Cir. 2010); see also United States v. Olano, 507 U.S. 725, 732–36, 113 S. Ct. 1770, 1776–79, 123 L. Ed. 2d 508 (1993). 3 United States v. Higuera-Llamos, 574 F.3d 1206, 1210 (9th Cir. 2009); see also Carty, 520 F.3d at 993.

3 and his desire to stay here.4 Similarly, it was well aware of his desire for a

downward variance5 based upon the nature of his criminal history. It did not abuse

its discretion when it did not consider that history a positive factor and did not vary

on that basis. Moreno’s suggestion that the district court faulted him for going to

trial is otiose—the district court actually gave him a downward variance in that

respect. Finally, Moreno argues that the district court erred when it imposed a term

of supervised release because it is precluded from imposing any such term. See

USSG §5D1.1(c). However, in so arguing he overlooks the word “ordinarily” in

that Guideline, which leaves the district court with discretion to impose a term of

supervised release on some defendants who are likely to be removed. See id.; see

also id. comment. (n.5). Moreno’s persistent return to this country in violation of

its laws indicated that some additional effort to preclude further violations was in

order.

Moreover, on this record the sentence imposed upon Moreno, which was ten

4 The mere possibility of removal was not a proper factor for departure under the Guidelines. See United States v. Alvarez-Cardenas, 902 F.2d 734, 737 (9th Cir. 1990). However, that would not necessarily preclude its consideration for the purposes of a variance. 5 Moreno alludes to USSG §4A1.3. Although that is a departure Guideline, we take his claim to be one for a variance as the district court apparently did. See United States v. Vasquez-Cruz, 692 F.3d 1001, 1005 (9th Cir. 2012); United States v. Mohamed, 459 F.3d 979, 986–87 (9th Cir. 2006).

4 months below the lowest level of the Guideline range (forty-six months), was

substantively reasonable. See Blinkinsop, 606 F.3d at 1116–17.

AFFIRMED.

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