NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JOSE ROBERTO GOMEZ-ARIAS, 

Defendant-Appellant.

No. 20-50118 

D.C. No. 3:19-cr-05277-LAB-1

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

Jose Roberto Gomez-Arias appeals from the district court’s judgment and 

challenges the 12-month sentence imposed following his guilty-plea conviction for

being a removed alien found in the United States, in violation of 8 U.S.C. § 1326. 

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

DEC 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 20-50118 

Gomez-Arias first contends that the district court erred by failing to address 

sufficiently his arguments for a downward variance in light of COVID-19, and by 

failing to grant the variance. The court did not plainly err in explaining why it 

rejected Gomez-Arias’s request for a variance. See United States v. ValenciaBarragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The record reflects that the court 

considered Gomez-Arias’s arguments in favor of a time-served sentence, including 

his arguments concerning COVID-19, but was not persuaded by them. See Rita v. 

United States, 551 U.S. 338, 358 (2007). Moreover, the court did not abuse its 

discretion by declining to vary downward from the Guidelines range. See Gall v. 

United States, 552 U.S. 38, 51 (2007). The 12-month sentence is substantively 

reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of 

the circumstances, including Gomez-Arias’s criminal and immigration history. See

Gall, 552 U.S. at 51.

Gomez-Arias next argues that he is entitled to resentencing because an 

appearance of impropriety was created when neither the district judge, nor the 

prosecutor, disclosed during the sentencing hearing a forthcoming policy 

concerning COVID-19 and the prisons. We disagree. Gomez-Arias concedes that 

he can only speculate that the district judge and prosecutor in his case were aware 

of the forthcoming policy. Moreover, he can only speculate that, had the policy 

been known to him, he would have been able to convince the government to 
3 20-50118 

recommend, and the district court to impose, a time-served sentence based on 

COVID-19, notwithstanding the lack of success he had with that argument at the 

sentencing hearing. On this record, Gomez-Arias has not shown an appearance of

impropriety.1 See Martinez v. Ryan, 926 F.3d 1215, 1226-27 (9th Cir. 2019) 

(appearance of impropriety cannot be shown through unfounded speculation). 

The government’s motion to strike certain portions of the excerpts of record 

and references to them in the briefing is granted. These materials were not part of 

the district court record, Gomez-Arias has not moved to make them part of the 

record on appeal, see Fed. R. App. P. 10(e), and they are not relevant to our 

disposition of the appeal. 

AFFIRMED.

1

In Gomez-Arias’s reply brief, he argues for the first time that the non-disclosure 

of the policy by the district judge and prosecutor also violated his due process 

rights. This argument fails for the same reasons.