NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 15 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50124

Plaintiff-Appellee, D.C. No. 3:20-cr-01116-BEN-1

v.

MEMORANDUM*

ARMANDO HERNANDEZ-GARCIA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Argued and Submitted March 4, 2021 Pasadena, California

Before: TALLMAN and CALLAHAN, Circuit Judges, and CHRISTENSEN,** District Judge.

Armando Hernandez-Garcia presents two distinct challenges to the district

court’s imposition of sentence. Specifically, Hernandez-Garcia contends that the

district court: (1) failed to order a presentence investigation or otherwise explain

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. on the record why such an investigation was unnecessary; and (2) relied on outside

information without providing it to the parties. Because the parties are familiar

with the facts, they are only recounted where necessary to understand our

conclusions. We have jurisdiction pursuant to 28 U.S.C. § 1291 and, for the

reasons stated below, affirm.

1. Review of Hernandez-Garcia’s first claim is foreclosed by the doctrine of

invited error. This doctrine “prevents a defendant from complaining of an error

that was his own fault” by rendering it “waived and therefore unreviewable.”

United States v. Myers, 804 F.3d 1246, 1254 (9th Cir. 2015) (internal citations

omitted). To apply, the defendant must: (1) invite the error; and (2) relinquish a

known right. Id. Here, both requirements are satisfied.

Without a doubt, Hernandez-Garcia enjoys the right to have a presentence

investigation prepared prior to sentencing. Fed. R. Crim. P. 32(c)(1)(A). But he

was specifically advised of this right and relinquished it to obtain an expedited

sentencing. Accordingly, this “issue vanishes” because “the Rule 32 error, if any,

was thus invited.” United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir. 1976).

2. Hernandez-Garcia’s second assignment of error also fails. At sentencing,

the district court must “allow the parties’ attorneys to comment on . . . matters

relating to an appropriate sentence.” Fed. R. Crim. P. 32(i)(1)(C). This requires

“disclosure of all relevant factual information to the defendant for adversarial

2 testing,” unless such information is merely used to establish “well-known,

common sense proposition[s].” United States v. Warr, 530 F.3d 1152, 1162–63

(9th Cir. 2008) (internal citations omitted).

Accordingly, a district court violates Rule 32 when it relies on undisclosed

information in imposing sentence without affording the defendant an “opportunity

to respond before sentence” is imposed. United States v. Gray, 905 F.3d 1145,

1148 (9th Cir. 2018). A Rule 32 violation, however, cannot form the basis of

appellate relief if it was harmless. Peguero v. United States, 526 U.S. 23, 29

(1999) (citing Fed. R. Crim. P. 52(a)). In other words, under Rule 52(a), this Court

may only afford relief if the district court’s alleged Rule 32 error prejudiced

Hernandez-Garcia. United States v. Olano, 507 U.S. 725, 734 (1993); United

States v. Minore, 292 F.3d 1109, 1119 (9th Cir. 2002).

Hernandez-Garcia’s Rule 32(i)(1)(C) challenge is three-fold, asserting that

the district court improperly relied on information related to: (1) past cases of

illegal re-entry by other aliens; (2) COVID-19; and (3) recidivism. As to the first

two categories, the Court need not determine whether the district court’s ostensible

reliance on this outside information violated Rule 32, because any error was

harmless.

The district court carefully examined the factors found at 18 U.S.C.

§ 3553(a) and was clear that the basis for its sentence was Hernandez-Garcia’s

3 criminal history. Consequently, even if the district court considered these

undisclosed outside materials, there was no prejudice because the record reveals

the sentence imposed would have been the same. In short, any error was harmless.

As to the final category, we are not convinced any Rule 32 error occurred in

this instance. To the extent the district court’s concerns about Hernandez-Garcia’s

criminal history were driven by undisclosed information regarding recidivism,

such information is precisely the sort of “[g]arden variety considerations . . . [that]

should not generally comes as a surprise to trial lawyers who have prepared for

sentencing.” Irizarry v. United States, 553 U.S. 708, 716 (2008) (internal citations

omitted). In other words, the district court’s supposed reliance on undisclosed

outside studies regarding recidivism revealed nothing more than “the well-known,

common sense proposition that” prior criminality is a relevant predictor of future

criminality. Warr, 530 F.3d at 1163. This is insufficient to warrant reversal.

AFFIRMED.

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