NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JORGE TORRES-GONZALEZ, 

Defendant-Appellant.

No. 18-50269 

D.C. No. 3:17-cr-04136-LAB-1 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Submitted July 15, 2019**

Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

Jorge Torres-Gonzalez appeals from the district court’s judgment and 

challenges the 68-month sentence imposed following his jury-trial 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

JUL 18 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-50269 

Torres-Gonzalez first contends that the district court’s pre-trial ruling that it 

would deny a fast-track departure under U.S.S.G. § 5K3.1 violated his 

constitutional rights and unfairly compelled him to go to trial. However, the 

district court has discretion to grant or deny a fast-track departure, and the record 

refutes Torres-Gonzalez’s suggestion that the district court’s reason for denying 

the reduction was improper. See United States v. Rosales-Gonzales, 801 F.3d 

1177, 1184 (9th Cir. 2015) (district court may exercise its discretion to deny a fasttrack reduction based on the defendant’s criminal and immigration history).

Moreover, because Torres-Gonzalez ultimately elected to go to trial, the district 

court properly concluded that he was ineligible for the departure. See United 

States v. Heredia, 768 F.3d 1220, 1237 (9th Cir. 2014) (fast-track departures are 

available to defendants “who quickly plead guilty”).

Torres-Gonzalez also contends that the district court misapplied U.S.S.G. 

§ 3E1.1 and violated his constitutional rights by denying an acceptance of 

responsibility adjustment after indicating pre-trial that he would receive the 

adjustment. However, the court’s statement that Torres-Gonzalez would receive 

the adjustment was made before he elected to withdraw his guilty plea and go to 

trial. Contrary to Torres-Gonzalez’s argument, the record reflects that the court 

thereafter denied the adjustment, not on the basis that Torres-Gonzalez went to 

trial, but rather because he contested his factual guilt at trial and did not show 
3 18-50269 

contrition at sentencing. The court’s finding that these actions reflected that 

Torres-Gonzalez did not accept responsibility for his offense was not clearly 

erroneous. See U.S.S.G. § 3E1.1 cmt. n.2; United States v. Rodriguez, 851 F.3d 

931, 949 (9th Cir. 2017) (acceptance adjustment “is not intended to apply to a 

defendant ... who puts the government to its burden of proof at trial by denying the 

essential factual elements of guilt” (internal quotation marks omitted)). 

Lastly, Torres-Gonzalez contends that the sentence is substantively 

unreasonable. The district court did not abuse its discretion. See Gall v. United 

States, 552 U.S. 38, 51 (2007). The 68-month sentence is substantively reasonable 

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

circumstances, including Torres-Gonzalez’s criminal and immigration history. See 

Gall, 552 U.S. at 51.

AFFIRMED.