Appeal from the United States District Court for the District of Nevada Howard D. McKibben, Senior District Judge, Presiding D.C. No. 3:11-cr-00010- HDM-WGC-1
The opinion of the court was delivered by: Ikuta, Circuit Judge:
Argued and Submitted June 11, 2012-San Francisco, California
Before: Procter Hug, Jr., Johnnie B. Rawlinson, and Sandra S. Ikuta, Circuit Judges.
Jose Maria Vasquez-Cruz appeals from the 24-month prison sentence imposed following his conviction for illegal re-entry in violation of 8 U.S.C. § 1326(a). He argues that the district court procedurally erred by failing to analyze whether he was entitled to a downward departure from the applicable sentencing range under the U.S. Sentencing Guidelines and by failing to adequately explain the chosen sentence. He also argues that the district court imposed a substantively unreasonable sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
On December 15, 2010, the Bureau of Immigration and Customs Enforcement ("ICE") investigated a report that a previously deported alien was residing unlawfully in Reno, Nevada. The investigation led ICE agents to Vasquez-Cruz, a citizen of Mexico who had previously been removed from the United States on four occasions. On June 3, 2011, Vasquez-Cruz pleaded guilty to unlawful re-entry by a deported, removed, or excluded alien in violation of 8 U.S.C. § 1326(a) without a plea agreement.
Taking into account Vasquez-Cruz's five prior criminal convictions for burglary, battery, and battery on a police officer, the presentence report calculated Vasquez-Cruz's total offense level as 13 and Criminal History Category as IV, which translated to a Guidelines range of 24 to 30 months imprisonment. The presentence report noted that Vasquez- Cruz might be culturally assimilated to the United States because he entered the country for the first time at age 8, but recommended against a downward departure from the Guidelines range on that basis. The report also noted that Vasquez-Cruz had learning disorders and mild retardation, but recommended that the district court not apply a downward variance under 18 U.S.C. § 3553(a) because of Vasquez-Cruz's criminal history which included four battery convictions. The presentence report then recommended a low-end guideline sentence of 24 months.
In response to the presentence report, Vasquez-Cruz filed a sentencing memorandum requesting a sentence of twelve months and one day. Vasquez-Cruz first argued that the district court should grant him a downward variance under 18 U.S.C. § 3553 on account of his cultural assimilation and mental disability. Vasquez-Cruz then argued that he was entitled to a downward departure under U.S.S.G. § 2L1.2 cmt. n.8*fn1 on account of his cultural assimilation. To support his request for a downward variance or departure, Vasquez-Cruz attached the expert reports of Dr. Martha B. Mahaffey, Ph.D., who diagnosed Vasquez-Cruz with mild mental retardation and other disabilities, and Dr. Amado M. Padilla, Ph.D., who concluded that Vasquez-Cruz "meets the necessary criteria for cultural assimilation."
At the sentencing hearing, the district court listened to the parties' arguments, including discussion of Vasquez-Cruz's cultural assimilation and mental disability. Before imposing a sentence, the court stated that it had "carefully considered" the presentence report, defendant's sentencing memorandum, and the expert reports, and "also considered the factors which the Court is required to consider under 18 United States Code, Section 3553(a)." The court held that the appropriate Guidelines range was 24 to 30 months and remarked that Vasquez-Cruz "doesn't fall outside the heartland of that, nor do I see any basis for a variance [or] departure in this case." The court then imposed a sentence of 24 months, at the low end of the Guidelines range. It reasoned that, although "inclined to impose a sentence at the highest end of the guideline range, or even consider a departure upward" because of Vasquez-Cruz's "fairly extensive" and "troubling" criminal history, a low end sentence was nevertheless warranted "because of the defendant's mental capacity."
Vasquez-Cruz timely appealed his sentence. On appeal, Vasquez-Cruz argues that the district court procedurally erred by failing to determine whether he was entitled to a departure under the Sentencing Guidelines before considering whether he was entitled to a variance under 18 U.S.C. § 3553(a). This failure, Vasquez-Cruz argues, violates the sequencing required by U.S.S.G. § 1B1.1, as amended in 2010, which directs district courts to first determine the Guidelines range, then consider departures from the Guidelines, and finally consider "the applicable factors in 18 U.S.C. § 3553(a) taken as a whole." Vasquez-Cruz also asserts that the district court procedurally ...