United States v. Luis Martinez-Huerta

MEMORANDUM

Luis Alberto Martinez-Huerta (“Martinez-Huerta”) pleaded guilty to one count of being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 (a) and (b). He argues that the district court imposed a 30-month sentence that departed from the United States Sentencing Guidelines (“Guidelines”) advisory range without sufficient notice to Martinez-Huerta that it intended to do so. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We affirm.

While the district court used the term “departure” during the sentencing hearing, it is clear that, in context, the court viewed the increase in sentence it was imposing as a “variance” instead. The reasons for the increase away from the Guidelines’ recommended range of 18 to 24 months’ imprisonment were based on facts, not law. Moreover, the calculated Guidelines range did not reflect an upward departure. See United States v. Cruz-Perez, 567 F.3d 1142, 1146 (9th Cir.2009) (“A ‘departure’ is typically a change from the final sentencing range computed by examining the provisions of the Guidelines themselves.”). Instead, the district court exercised its authority under United States v. Booker, 543…