Aguilar-Rodriguez

MEMORANDUM

Luis Aguilar-Rodriguez appeals his 87 month prison sentence following his guilty plea to a single count of unlawful entry as a deported alien, in violation of 8 U.S.C. §§ 1326 (a) and (b)(2) (2000).

Aguilar-Rodriguez contends the district court erred during sentencing when it limited consideration of sentencing disparities involving violations of 8 U.S.C. § 1326 (b) to cases in the District of Nevada. This Court has held that sentencing disparities arising from charging and plea bargaining decisions of different U.S. Attorneys are not a proper basis for departing from the applicable guideline sentencing range. U.S. v. Banuelos-Rodriguez, 215 F.3d 969, 973 (9th Cir.2000). The district court was therefore correct to focus on sentencing disparities in the District of Nevada.

Aguilar-Rodriguez also argues that, during his sentencing hearing, the district court improperly considered his national origin, which is deemed irrelevant in sentencing under U.S. Sentencing Guidelines Manual section 5H1.10. The basis for Aguilar-Rodriguez’s allegation was a passing statement from the district court, referring to Appellant’s “nonstop criminal activity ... against the citizens of…