United States v. Antonio Vargas-Soriano

MEMORANDUM

Antonio Jose Vargas-Somno appeals his sentence for attempted entry after removal. See 8 U.S.C. § 1326 (a). We affirm.

(1) Vargas first asserts that he did not receive notice that the district court would consider departing from its calculated guideline range. See Fed.R.Crim.P. 32(h). We disagree. Because Vargas did not raise the issue at the district court, we review for plain error. See United States v. Cruz-Perez, 567 F.3d 1142 , 1146 & n. 1 (9th Cir.2009); United States v. Evans-Martinez, 530 F.3d 1164, 1167 (9th Cir.2008). There was no plain error. At the start of the proceeding, the district court did inform Vargas of the possibility that it would depart, and the government had given notice that it would seek a sentence above the calculated guideline range at the time it filed its papers, but Vargas neither sought a continuance nor gave any indication that he was surprised or discommoded under the circumstances.

(2) Vargas then procedurally attacks the details of the district court’s departure discussion. We reject that attack on two separate bases.

(a) On this record, the district court did not procedurally err when it decided to depart on the ground that the…