NOT FOR PUBLICATION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

- Gonzale z 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 ha ve 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, CLER K U.S. COURT OF APPEAL S2 18

- 50269

Torres

- Gonzale z 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 v iolated 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 fast

track reduction based on the defendant’s criminal and immigration history). Moreover, because Torres

- Gonzale z ultimately elected to go to trial, the d istrict court properly concluded that he was in eligible 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

- Gonzale z 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

- Gonzale z would receive the adjustment was made before he elected to withdraw his guilty plea and go to trial. Contrary to Torres

- Gonzale z ’s argument, the record reflects that the court thereafter denied the adjustment , not on the bas is that Torres

- Gonzale z went to trial, but rather because he contest ed his factual guilt at trial and did not show3 18

- 50269

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

- Gonzale z did not accept responsibility for his offens e 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

- Gonzale z 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

- Gonzale z ’s criminal and immigration history. See Gall , 552 U.S. at 51.
AFFIRMED.