United States v. Alejandro Burgos-Ortega

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50237

Plaintiff-Appellee,

D.C. No.

v. 3:12-cr-05168-BEN-1

ALEJANDRO BURGOS-ORTEGA,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted

December 8, 2014—Pasadena, California

Filed February 5, 2015

Before: Susan P. Graber, Ronald M. Gould,

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

2 UNITED STATES V. BURGOS-ORTEGA

SUMMARY*

Criminal Law

The panel affirmed a sentence for illegal re-entry in a

case in which the district court applied a 12-level increase

pursuant to U.S.S.G. § 2L1.2(b)(1)(A) after determining that

the defendant’s 1992 conviction for delivery of heroin under

Revised Code of Washington § 69.50.401(a)(1)(i) was for a

“drug trafficking offense.”

The defendant argued that § 69.50.401 is categorically

overbroad because it criminalizes manufacturing, delivering,

or possessing with intent to manufacture or deliver a

controlled substance without containing an exemption for

“administering,” even though federal law exempts

“administering” from the definition of distribution. The panel

rejected this contention because the defendant has not shown

the realistic probability of prosecution for administering a

drug.

The panel held that the district court did not rest its

sentence on any clearly erroneous fact, and rejected the

defendant’s claim that his sentence was substantively

unreasonable.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. BURGOS-ORTEGA 3

COUNSEL

Kent D. Young (argued), Federal Defenders of San Diego,

Inc., San Diego, California, for Defendant-Appellant.

Laura E. Duffy, Bruce R. Castetter, Mark R. Rehe (argued),

Anne K. Perry, United States Attorney’s Office, San Diego,

California, for Plaintiff-Appellee.

OPINION

CALLAHAN, Circuit Judge:

Defendant-Appellant Alejandro Burgos-Ortega pled

guilty to illegal re-entry in violation of 8 U.S.C. § 1326 and

received a 46-month sentence. Burgos-Ortega challenges his

sentence on appeal, arguing that 1) the district court erred

when it applied a 12-level increase to his offense level based

on a Washington State drug conviction; 2) the district court

erred by basing its sentence on facts not in the record; and

3) his above-Sentencing Guidelines sentence was

substantively unreasonable. We have jurisdiction pursuant to

18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

I

Burgos-Ortega is a citizen of Mexico who crossed into the

United States near the San Ysidro Port of Entry on November

19, 2012. Burgos-Ortega was arrested the next day and

admitted that he was in the United States illegally. He later

pled guilty to illegal re-entry in violation of 8 U.S.C.

§ 1326(a) and (b).

4 UNITED STATES V. BURGOS-ORTEGA

Burgos-Ortega’s presentence report (“PSR”) calculated

his Guidelines range as 18 to 24 months and recommended a

24-month sentence. This recommendation resulted from a

base offense level of 8, a 12-level increase based on a prior

drug trafficking offense,1 a 3-level decrease based on

acceptance of responsibility, and a 4-level downward

departure based on his participation in a “fast track”

prosecution. The prior offense leading to the 12-level

increase was a 1992 Washington State conviction under

Revised Code of Washington (“RCW”) § 69.50.401(a)(1)(i)2

for “Delivery of Heroin.”3 The Guidelines range was based

on the total offense level of 13 and two prior criminal

convictions for illegal re-entry in 1998 and 2006, which

resulted in 70-month and 46-month sentences, respectively.4

1

U.S.S.G. § 2L1.2(b)(1)(A) provides for a 12-level increase in the

offense level if the defendant has a prior conviction for a felony drug

trafficking offense for which the sentence imposed exceeded 13 months.

2

RCW § 69.50.401(a) (1992) stated: “Except as authorized by this

chapter, it is unlawful for any person to manufacture, deliver, or possess

with intent to manufacture or deliver, a controlled substance.” Unless

otherwise noted, we refer to the 1992 version of the statute.

3

The PSR wrongly identified the date of this offense as November 13,

1996, though the parties agree that this offense occurred in 1992. The

PSR indicated that Burgos-Ortega also had felony convictions in Utah in

1994 and 1996. The PSR explained that these convictions were also

felony drug trafficking offenses triggering the 12-level increase pursuant

to U.S.S.G. § 2L1.2(b)(1)(A)(i), but that “only one such prior is needed”

to trigger the increase.

4

The PSR also indicated that Burgos-Ortega had been apprehended by

immigration agents seven times and had been deported three times.

UNITED STATES V. BURGOS-ORTEGA 5

At sentencing, the Government recommended, and

Burgos-Ortega requested, a 24-month sentence. Burgos-

Ortega’s counsel argued that while this proposed sentence

was shorter than what he had received in the past for illegal

re-entry, it was appropriate in light of a change in the

Guidelines and the staleness of Burgos-Ortega’s prior

convictions. Counsel pointed specifically to a 2011

amendment to the Guidelines. The amendment reduced the

offense level increase from 16 to 12 if the defendant’s prior

conviction was too old to receive criminal history points, as

was the case here with Burgos-Ortega’s 1992 Washington

heroin conviction.

Burgos-Ortega’s counsel also argued that he had a

“diminishing criminal history apart from the illegal entries”

and claimed that Burgos-Ortega’s criminal record in the

1990s was “driven by his substance abuse,” but he had been

clean since 1996. Finally, Burgos-Ortega’s counsel asserted

that a 24-month sentence was appropriate because Burgos-

Ortega had only come to the United States because he was

worried about his children. He argued that now that Burgos-

Ortega had reestablished contact with them, and given that his

children planned to continue their relationship with him,

including visiting him in Mexico, Burgos-Ortega had no

reason to return at this point.5

At sentencing, the district court stated that it would “vary

up” and impose an above-Guidelines sentence:

5

Burgos-Ortega’s attorney also argued that the court’s concerns about

deterrence could be allayed at least in part by imposing a term of

supervised release after his prison sentence.

6 UNITED STATES V. BURGOS-ORTEGA

Now I have reviewed this file pretty

carefully because I knew I was going to vary

up. And I’ve heard the reasons for coming

back into the United States. I’d be willing to

bet you dollars to donuts that if I went and I

got a transcript of the proceedings of his

previous 1326’s, he probably had a good

excuse for coming back into the United States.

Now I don’t have those transcripts. But, you

know, I do enough of these every Monday, I

probably do more sentencings than many,

many districts combined. And I hear it all the

time. There is always, you know, reason to

come back. They want to be with their family

or what have you. And the story never

changes in the sense that they come back.

The only thing that deters them from

coming back is a sentence. That is it, plain

and simple. And even that doesn’t necessarily

always work. So, you know, I have to

consider – obviously, I’ve considered the fact

that his prior conviction was stale. I’ve

considered that. I’ve considered the fact that

as a result of that, he gets a reduction in the

Guideline calculations. I’ve considered the

fact that in this district, because of the number

of these cases that we have, we also have a

fast-track program.

The district court also recounted Burgos-Ortega’s

criminal history, which included various drug charges and his

first illegal reentry conviction, which had resulted in a 70-

UNITED STATES V. BURGOS-ORTEGA 7

month sentence. The court then discussed his second illegal

re-entry conviction:

Then guess what, in 2006, he’s again

arrested for another 1326. And this time,

guess what, we did him a favor, and the favor

was, we reduced the sentence that he got. We

went from 70 months down to 46 months.

Now, his supervised release in this case

expired on July 29th, 2012. He was arrested

on November 20th, 2012. Now that’s

basically three months. Three months after

his supervised release expired, he came back

into the United States.

The court also expressed concern about Burgos-Ortega’s past

problems with substance abuse and its fear that Burgos-

Ortega would return to selling or using drugs again if he

returned to the United States after deportation.

In light of Burgos-Ortega’s history, the court determined

that a Guidelines-range sentence was not appropriate in this

case:

I see absolutely, absolutely no reason,

whatsoever, for why I would want to impose

a sentence that is less than the last sentence he

received. I mean, it makes no sense.

Logically, it makes absolutely no sense. I

might as well put him on probation if you ask

me to impose a lesser sentence, or maybe give

him a medal or certificate of achievement.

8 UNITED STATES V. BURGOS-ORTEGA

The fact of the matter is, 70 months didn’t

work; 46 months didn’t work. Now, frankly,

I’d be half tempted to go above the 46-month

sentence, but I’m not going to do that. I’m

going to give him the benefit of the doubt.

I’m going to impose the same sentence he

received the last time. I’ve considered the

Guidelines. I think the Guidelines in this case

under-represent both his criminal history and

fail to take into account the lack of deterrence

or the protection of the public.

The district court ultimately held that the 18- to 24-month

Guidelines-range sentence was inadequate and sentenced

Burgos-Ortega to 46 months’ imprisonment and a three-year

term of supervised release.

Burgos-Ortega’s attorney then objected, stating that the

court had not reviewed any conviction documents for his

1992 Washington drug trafficking conviction that was the

basis for the 12-level increase in his offense level. He also

asserted that the PSR was insufficient proof to show that the

1992 conviction was for delivery of heroin. Burgos-Ortega’s

attorney also argued that the court overemphasized the

deterrence aspect of 18 U.S.C. § 3553(a) and disregarded the

particularized facts of Burgos-Ortega’s case when it found

that only an increased or similar sentence to his prior illegal

re-entry convictions would be appropriate. Burgos-Ortega’s

attorney re-emphasized that Burgos-Ortega’s reason for

returning—to reunite with his family—meant that he was

unlikely to repeat his crime.

The district court noted that these arguments were “just

not very credible” because of the “holes and inconsistencies”

UNITED STATES V. BURGOS-ORTEGA 9

in Burgos-Ortega’s story. Burgos-Ortega’s counsel offered

to provide additional information, but the court explained:

Now, look, as I said before, if we got ahold

[sic] of the transcript of the prior two

convictions, I’m willing to bet you dollars to

donuts that he had a, quote, good excuse, end

of quote, for coming back into the United

States.

And I’d be willing to bet you dollars to

donuts that if we looked at those two prior

transcripts, there is probably something in

there that he said, I’m not going to come back,

judge, give me a chance, give me a break, and

yet he comes back.

What I was trying to point out is, you can

fabricate all sorts of excuses for why people

come back into the United States. I’m not

saying they’re not understandable. You

know, I mean, given the choice of living in

Mexico, living here, I’d much rather live here.

The fact of the matter is, it’s against the law.

He’s been told it’s against the law.

And I don’t know what else you could

have said, frankly, that would have changed

that. . . . [Burgos-Ortega’s desire to locate his

children] is not an excuse for him to come

back into the United States.

Burgos-Ortega renewed his objections to the sentence and

subsequently filed a timely notice of appeal.

10 UNITED STATES V. BURGOS-ORTEGA

II

We review a district court’s sentence for abuse of

discretion. United States v. Blinkinsop, 606 F.3d 1110, 1114

(9th Cir. 2010). A district court abuses its discretion when it

errs in its Guidelines calculation, imposes a sentence based on

clearly erroneous facts, or imposes a substantively

unreasonable sentence. United States v. Carty, 520 F.3d 984,

993 (9th Cir. 2008) (en banc).

Burgos-Ortega first argues that the district court erred in

calculating his Guidelines range when it relied on his 1992

Washington drug trafficking conviction without referring to

any conviction documents. In his view, the statute that the

conviction was based on, RCW § 69.50.401, is categorically

overbroad because it criminalizes manufacturing, delivering,

or possessing with intent to manufacture or deliver a

controlled substance without containing an exemption for

“administering,” even though federal law exempts

“administering” from the definition of distribution.6 Given

the lack of this “administering” exception in the Washington

statute, Burgos-Ortega contends that the court was required

to apply the modified categorical approach to determine

whether Burgos-Ortega was in fact convicted for

administering heroin, relying on, among other things, our

unpublished decision in Le v. Holder, 480 F. App’x 864 (9th

Cir. 2012).

6

Because Burgos-Ortega’s arguments fail under de novo review, we

assume, without deciding, that Burgos-Ortega properly preserved his

argument that RCW § 69.50.401 is categorically overbroad based on its

failure to include an exception for administering.

UNITED STATES V. BURGOS-ORTEGA 11

In determining whether a prior conviction qualifies for an

enhancement under § 2L1.2, a sentencing court first applies

the “categorical approach” from Taylor v. United States,

495 U.S. 575 (1990). Under this approach,

courts look only to the fact of conviction and

the statutory definition of a prior offense to

determine whether that prior offense can be

used for a sentencing enhancement under the

federal Guidelines. If the state statute

criminalizes conduct that would not constitute

a drug trafficking offense under federal

sentencing law, then a prior conviction under

that statute does not categorically qualify as a

basis for enhancing a defendant’s sentence.

United States v. Valdavinos-Torres, 704 F.3d 679, 691 (9th

Cir. 2012) (citation and internal punctuation omitted). We

review de novo whether a prior conviction qualifies as a

“drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A).

Id.

There does not appear to be any published case examining

whether RCW § 69.50.401(a) is a categorical match for the

generic drug trafficking offense. However, we briefly

examined this statute in Le v. Holder, 480 F. App’x at

865–67.7 Contrary to the government’s contention, in Le we

7

We also examined this statute in United States v. Copas-Villegas,

566 F. App’x 556 (9th Cir. 2014) (unpublished). In Copas-Villegas, the

defendant argued the statute was overbroad because it proscribed

solicitation. We assumed for the purposes of argument that the statute was

categorically overbroad. We nevertheless concluded that the defendant’s

conviction was an aggravated felony under the modified categorical

approach, based on the defendant’s written allocution submitted with his

12 UNITED STATES V. BURGOS-ORTEGA

did not merely assume that the statute was overbroad. Rather,

we noted that RCW § 69.50.401(a) does not contain an

exception for administering, in contrast to the federal statute:

Le contends that conduct that falls under

“deliver” in the state statute is broader than

conduct that falls under “distribute” in the

federal statute, and so Le’s state conviction

for intent to deliver does not constitute intent

to distribute under [21 U.S.C.] § 841(a)(1).

He relies on the fact that the federal definition

for distribute “means to deliver (other than by

administering or dispensing) a controlled

substance or a listed chemical,” 21 U.S.C.

§ 802(11), but the state definition does not

contain those exceptions, so he could have

been convicted for dispensing or

administering – behavior not criminalized

under the federal generic statute.

Id. at 866.

However, Le, a non-binding unpublished memorandum

disposition, did not address whether Washington State had

actually ever obtained a conviction under RCW

§ 69.50.401(a) for delivery through a defendant’s

administration of the drug. In Gonzales v. Duenas-Alvarez,

549 U.S. 183 (2007), the Supreme Court explained that a

court must examine whether there was more than just a

theoretical possibility that a defendant could be prosecuted

for conduct that is outside of the federal generic statute:

guilty plea, in which he admitted that he possessed cocaine with the intent

to deliver. Id. at 557.

UNITED STATES V. BURGOS-ORTEGA 13

[I]n our view, to find that a state statute

creates a crime outside the generic definition

of a listed crime in a federal statute requires

more than the application of legal imagination

to a state statute’s language. It requires a

realistic probability, not a theoretical

possibility, that the State would apply its

statute to conduct that falls outside the generic

definition of a crime. To show that realistic

probability, an offender, of course, may show

that the statute was so applied in his own case.

But he must at least point to his own case or

other cases in which the state courts in fact

did apply the statute in the special

(nongeneric) manner for which he argues.

Id. at 193; see also Moncrieffe v. Holder, 133 S. Ct. 1678,

1684–85 (2013) (quoting Duenas-Alvarez, 549 U.S. at 193).

The Court noted that the defendant had failed to show a

realistic possibility of prosecution for conduct outside the

federal statute and concluded that the state statute at issue

was not overbroad. Duenas-Alvarez, 549 U.S. at 193–94.

We recently applied Duenas-Alvarez in examining

whether a state statute was categorically overbroad. In

Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. 2014), we

granted a petition for review after the Board of Immigration

Appeals (“BIA”) found the petitioner removable based on a

2005 California drug conviction for which he received a

firearm sentencing enhancement. We held that the BIA erred

when it found that the enhancement for carrying a firearm in

violation of California Penal Code § 12022(c) constituted a

categorical firearm offense, because the state statute that

defined “firearm” at the time of the defendant’s conviction

14 UNITED STATES V. BURGOS-ORTEGA

was overbroad. The state statute did not exempt antique

firearms—which are exempted from the generic federal

firearm offense—and recent California prosecutions

demonstrated a realistic probability that the state could obtain

a conviction even if the firearm was an antique. Id. at

1115–17; see also United States v. Aguilera-Rios, 769 F.3d

626 (9th Cir. 2014) (discussing prosecutions under Cal. Penal

Code § 12022(c) for possession of antique firearms).

In contrast, in the unpublished opinion United States v.

Villeda-Mejia, 559 F. App’x 387, 389 (5th Cir. 2014) (per

curiam), the Fifth Circuit held that the defendant had not

shown a realistic probability that RCW § 69.50.401(a), the

statute before us in this appeal, was overbroad. Applying

plain error review, the Fifth Circuit explained:

Villeda-Mejia . . . argues that “delivery”

under the Washington statute (but not the

gui d el i nes enhancem ent) includes

“administering” such that he must prevail in

light of Moncrieffe v. Holder, 133 S. Ct. 1678

(2013), and Descamps [v. United States,

133 S. Ct. 2276 (2013)]. Neither case

involved the same situation presented here.

Unlike those cases, here Villeda-Mejia has

not pointed to a Washington case applying

this statute in an “administering” situation.

Accordingly, it is far from clear that

the Washington statute encompasses

“administering.” We have previously held

that a “theoretical possibility” that a state

statute would encompass conduct that is not

part of the offense to which an enhancement

would apply is insufficient to avoid the

UNITED STATES V. BURGOS-ORTEGA 15

enhancement. United States v. Carrasco-

Tercero, 745 F.3d 192, 197–98 (5th Cir.

2014). Certainly the idea that delivery under

the Washington statute would encompass

“administering” is not “clear or obvious” as

required for plain error. We also conclude

that this “theoretical possibility” makes it

inappropriate for us to exercise our discretion

to correct any such error under the fourth

prong of plain error review.

Id. at 389.8 Accordingly, the Villeda-Mejia court affirmed the

defendant’s sentence, which was based in part on a

sentencing enhancement for his prior conviction under RCW

§ 69.50.401. Id. at 388–89. The Fifth Circuit later cited this

discussion in a published opinion holding that a Texas statute

was a categorical drug trafficking offense because the

defendant had not shown a realistic probability that the statute

criminalized conduct broader than the generic drug

trafficking offense. United States v. Teran-Salas, 767 F.3d

453, 460–61 (5th Cir. 2014), petition for cert. filed,

___U.S.L.W.___, (U.S. Dec. 15, 2014) (No. 14-7593).

We hold that Burgos-Ortega has not shown the realistic

probability of prosecution for administering a drug required

to establish that RCW § 69.50.401 is categorically overbroad.

Burgos-Ortega argues that it is theoretically possible that a

defendant could be prosecuted for administering a controlled

substance under RCW § 69.50.401, without pointing to any

8

The Villeda-Mejia court applied plain error review because the

defendant did not object to the district court’s determinations that his

prior state court conviction under RCW § 69.50.401 was a drug trafficking

offense and an aggravated felony. 359 F. App’x at 388.

16 UNITED STATES V. BURGOS-ORTEGA

case where a defendant was in fact prosecuted or convicted

for administering a drug under this statute. The fact that

Burgos-Ortega has not identified such a case suggests that

there is no realistic probability of prosecution under RCW

§ 69.50.401(a) for administering rather than delivering an

illegal drug.

In contrast, in Medina-Lara and Aguilera-Rios, we cited

several cases involving antique firearms convictions, which

established the required realistic probability that state courts

gave the applicable statute an overbroad interpretation. See

also Macias-Carreon v. Holder, 716 F.3d 1286, 1288 (9th

Cir. 2013) (rejecting petitioner’s claim that the state statute

prohibiting possession of marijuana for sale punished conduct

outside of the generic federal offense because this claim was

“facially implausible and unaccompanied by a single citation

to a case in which this has occurred”).

Burgos-Ortega, however, argues that pursuant to United

States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc),

and United States v. Vidal, 504 F.3d 1072, 1082 (9th Cir.

2007) (en banc), he need not show that anyone was actually

convicted for administering under RCW § 69.50.401(a)

because the statute is “overbroad on its face.” These cases

are distinguishable because the state statute here does not

expressly include conduct not covered by the generic offense,

but rather is silent as to the existence of a parallel

administering exception. This is not, for example, a burglary

statute that expressly reaches non-buildings, as discussed in

Grisel. If Burgos-Ortega’s interpretation of Grisel and Vidal

were correct, in Medina-Lara, we would not have needed to

look at whether any felon-in-possession convictions in

California involved antique firearms.

UNITED STATES V. BURGOS-ORTEGA 17

Moreover, it appears unlikely that a statute that made it

illegal to “manufacture, deliver, or possess” a drug would be

interpreted by Washington courts as allowing prosecution for

administering a drug. Under the applicable federal statute,

“administer” is defined as:

[T]he direct application of a controlled

substance to the body of a patient or research

subject by—

(A) a practitioner (or, in his presence, by

his authorized agent), or

(B) the patient or research subject at the

direction and in the presence of the

practitioner, whether such application be by

injection, inhalation, ingestion, or any other

means.

21 U.S.C. § 802(2). The Washington statute is focused on the

production, sale, or possession of a drug, and it is implausible

that a doctor, patient, or research subject would be prosecuted

under RCW § 69.50.401(a) for administering a drug.

Thus, Burgos-Ortega’s contention that RCW § 69.50.401

is overbroad on its face is unavailing, and we reject his claim

of procedural error based on the 12-level increase for his

1992 Washington drug trafficking conviction.9

9

Given that Burgos-Ortega has not shown more than a theoretical

possibility that a defendant could be convicted of administering a drug

under RCW § 69.50.401, we do not address the government’s argument

that, under Washington law, one cannot “deliver” a drug by administering

it. We also do not address the government’s contention that Burgos-

18 UNITED STATES V. BURGOS-ORTEGA

III

Burgos-Ortega next argues that the district court clearly

erred because its sentence was based on facts not found in the

record. Specifically, Burgos-Ortega argues that the district

court improperly speculated that he had offered good reasons

for his prior two illegal re-entries when it rejected Burgos-

Ortega’s contention that he had no reason for returning to the

United States in the future. In his view, the district court

procedurally erred because there was no evidence in the

record on his justifications for his prior re-entries.

Burgos-Ortega’s argument is not persuasive. A district

court procedurally errs at sentencing if it imposes a sentence

based on “clearly erroneous facts,” and “[a] finding is clearly

erroneous if it is illogical, implausible, or without support in

the record.” United States v. Carty, 520 F.3d 984, 993 (9th

Cir. 2008) (en banc); United States v. Graf, 610 F.3d 1148,

1157 (9th Cir. 2010). Our review of the record reveals that

the district court’s comments played no role in its

determination of an appropriate sentence. The court

expressly recognized that it did not have the transcripts from

the earlier hearings before it and the court stated that, in its

view, Burgos-Ortega’s reasons for an illegal re-entry were

irrelevant. Viewing the record as a whole, the district court

did not rest its sentence on any clearly erroneous fact.

Ortega’s Utah convictions were sufficient bases for the 12-level offense

level increase, nor whether the modified categorical approach would be

applicable in this case had we determined that RCW § 69.50.401 was

categorically overbroad.

UNITED STATES V. BURGOS-ORTEGA 19

IV

Burgos-Ortega’s final argument is that his sentence was

substantively unreasonable because the district court failed to

account for the staleness of his 1992 Washington heroin

conviction, focused excessively on deterrence while

disregarding the nature and circumstances of his current

offense, and overlooked the other § 3553(a) factors.

In assessing the substantive reasonableness of a sentence,

courts consider the totality of the circumstances, including the

degree of variance from the Guidelines. United States v.

Gall, 552 U.S. 38, 49–51 (2007). “The weight to be given the

various factors in a particular case is for the discretion of the

district court.” United States v. Gutierrez-Sanchez, 587 F.3d

904, 908 (9th Cir. 2009) (citing Carty, 520 F.3d at 993). One

of the permissible § 3553(a) factors is “the need for the

sentence imposed . . . to afford adequate deterrence to

criminal conduct.” 18 U.S.C. § 3553(a)(2)(B).

Here, while the Guidelines-range sentence was 18 to 24

months, Burgos-Ortega had already received 70-month and

46-month sentences for his prior two illegal re-entry

convictions. Burgos-Ortega also had an extensive prior

criminal history aside from his illegal re-entries, including

seven drug and theft-related convictions from 1992 to 1996.

In addition, he had re-entered the country a mere four months

after finishing his 3-year term of supervised release for his

prior illegal re-entry conviction in 2012.10

10

Contrary to Burgos-Ortega’s assertion, the district court did not apply

a 16-level enhancement when it imposed a 46-month sentence, nor did it

“disregard” the 2011 Guidelines Amendment reducing the offense level

20 UNITED STATES V. BURGOS-ORTEGA

The district court discussed the totality of the

circumstances, including the staleness of Burgos-Ortega’s

prior convictions, Burgos-Ortega’s participation in the

Southern District of California’s “fast track” program, the

lack of any recent drug offenses, Burgos-Ortega’s acceptance

of responsibility, and his excuse for returning, specifically

that he wanted to reunite with his family. Nevertheless, the

district court reasonably concluded, citing Burgos-Ortega’s

extensive criminal history and prior illegal re-entry

convictions, that the need for deterrence under § 3553(a)(2)

outweighed any mitigating factors and required a sentence at

least equal to his last illegal re-entry sentence.

Burgos-Ortega relies on United States v. Amezcua-

Vasquez, 567 F.3d 1050 (9th Cir. 2009), in support of his

contention that his sentence was substantively unreasonable,

but that case is distinguishable. In Amezcua-Vasquez, a

defendant was convicted for illegal re-entry and sentenced to

a within-Guidelines sentence of 52 months based on a 16-

level enhancement for a prior aggravated felony, specifically

his 25-year-old convictions for assault with great bodily

injury and attempted voluntary manslaughter. We held that

although the Guidelines range was calculated correctly, the

defendant’s sentence was substantively unreasonable because

of “the staleness of [the defendant’s] prior conviction and his

subsequent history showing no convictions for harming

others or committing other crimes listed in Section 2L1.2 [of

the Guidelines].” Id. at 1055. However, we specifically

stated that our holding in Amezcua-Vasquez had a “limited

scope,” noting that we had made “no pronouncement” as to

the reasonableness of sentences based on more recent

increase from 16 to 12. Rather, the district court clearly stated that it was

varying upward from the Guidelines range.

UNITED STATES V. BURGOS-ORTEGA 21

convictions or the need for deterrence. Id. at 1058; see also

United States v. Valencia-Barragan, 608 F.3d 1103, 1108–09

(9th Cir. 2010) (discussing Amezcua-Vasquez’s limited

scope).

Here, Burgos-Ortega has a much longer criminal record,

his prior convictions are more recent, and he has been

convicted for illegal re-entry three times. See United States

v. Segura-Del Real, 83 F.3d 275, 277 (9th Cir. 1996)

(repetition of the same or similar offenses may warrant an

upward departure). Further, the staleness of Burgos-Ortega’s

triggering conviction was taken into account under the post-

Amezcua-Vasquez Guidelines amendment reducing the

increase for a prior felony not scored from 16 to 12. On this

record, the district court did not commit “a clear error of

judgment in the conclusion it reached upon weighing the

relevant factors.” See Amezcua-Vasquez, 567 F.3d at 1055.

We therefore reject Burgos-Ortega’s claim that his sentence

was substantively unreasonable.

V

The district court did not err in sentencing Burgos-Ortega.

It properly considered Burgos-Ortega’s 1992 Washington

state conviction for delivery of heroin. At most, he has

shown only a theoretical possibility that a defendant could be

convicted for administering rather than distributing a drug

under RCW § 69.50.401. The district court did not abuse its

discretion by relying on clearly erroneous facts. Finally,

Burgos-Ortega’s 46-month sentence was not substantively

unreasonable in light of his prior 70-month and 46-month

sentences for illegal re-entry. The district court reasonably

determined that a 46-month sentence was sufficient but not

greater than necessary. Because our standard of review

22 UNITED STATES V. BURGOS-ORTEGA

requires that we give district courts great latitude both in

choosing a sentence and in articulating reasons for the

sentence, Burgos-Ortega’s sentence is AFFIRMED.