FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-50254

Plaintiff-Appellee, D.C. No.

v.  3:08-cr-00759-LAB1 HUGO GUTIERREZ-SANCHEZ,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Submitted February 13, 2009*

Pasadena, California

Filed March 23, 2009

Before: Carlos T. Bea, Daniel M. Friedman,** and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Friedman

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**Daniel M. Friedman, United States Circuit Judge for the Federal Circuit, sitting by designation. 

3693
COUNSEL

Norma A. Aguilar, Federal Defenders of San Diego, Inc., San

Diego, California, for appellant Hugo Gutierrez-Sanchez. 

Karen P. Hewitt, United States Attorney; Bruce R. Castetter,

Assistant United States Attorney, Chief Appellate Section,

Criminal Division; Douglas Keehn and Mark R. Rehe, Assistant United States Attorneys, San Diego, California, for appellee United States of America. 

UNITED STATES v. GUTIERREZ-SANCHEZ 3695
OPINION

FRIEDMAN, Circuit Judge: 

The appellant Hugo Gutierrez-Sanchez challenges his sentence primarily because, although he pleaded guilty to an

offense for which the United States Sentencing Guidelines

(“the Guidelines”) recommended a particular sentence, he was

given a more severe sentence that the Guidelines recommended for a related, more serious offense. The Guidelines,

however, provide that if a plea agreement “specifically establishes the commission of additional offense(s),” it shall be

“treated as if the defendant had been convicted of additional

count(s) charging those offense(s).” U.S.S.G. § 1B1.2(c).

Since in his plea agreement Gutierrez admitted facts that

established the more serious offense on which his sentence

was based, the district court did not err in its calculation of the

Guidelines recommended sentence. The sentence actually

imposed also was substantively reasonable. We therefore

affirm.

I

Prior to his present difficulties, Gutierrez twelve times had

entered the United States illegally from Mexico and been

removed to Mexico. While in the United States during this

period, he was thrice criminally convicted. 

In the present case, Gutierrez was apprehended hiding in

dense brush several hundred yards north of the United States

- Mexican border. He was arrested and charged with being a

deported alien found in the United States, in violation of 8

U.S.C. § 1326. Gutierrez entered into a so-called “fast-track”

arrangement with the government, under which he agreed to

plead guilty to a lesser offense and waived various rights. He

signed a written agreement in which he pleaded guilty to making a false statement to a federal official, in violation of 18

U.S.C. § 1001, namely, that in 2004, after having illegally

3696 UNITED STATES v. GUTIERREZ-SANCHEZ
entered the country, he told a federal officer “that his name

was Salvador Beltran-Bera.” 

Gutierrez and the government agreed upon his offense level

and criminal history under the Guidelines calculations, which

produced a Guidelines range sentence of 6-12 months imprisonment. The parties agreed to recommend a sentence of 9

months imprisonment. In the plea agreement, Gutierrez also

stated that he “understands that the sentence is within the sole

discretion of the sentencing judge” and that “the recommendation made by the Government is not binding on the Court,

and defendant’s actual sentence remains uncertain at this

time.”

The district court accepted Gutierrez’ guilty plea but

rejected the recommended 9 months imprisonment sentence.

The court stated that it was “inclined to sentence within what

I think is the applicable guideline range for the real offense,

which is coming back over here.” After hearing Gutierrez’

objections, the court “f[ou]nd that the real offense here, the

one that the Guideline calculations should be predicated upon,

is a[n 8 U.S.C. §] 1326.” The court calculated the Guidelines

range for this offense at 10-16 months imprisonment (which

calculation Gutierrez does not challenge) and, after considering the specified sentencing factors under 18 U.S.C.

§ 3553(a), sentenced Gutierrez to 16 months imprisonment. 

II

A. On appeal, this court “first consider[s] whether the district court committed significant procedural error, then . . .

consider[s] the substantive reasonableness of the sentence.”

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en

banc). In Carty, we held that

[i]t would be procedural error for a district court to

fail to calculate — or to calculate incorrectly — the

Guidelines range; to treat the Guidelines as mandaUNITED STATES v. GUTIERREZ-SANCHEZ 3697
tory instead of advisory; to fail to consider the

§ 3553(a) factors; to choose a sentence based on

clearly erroneous facts; or to fail adequately to

explain the sentence selected, including any deviation from the Guidelines range. 

Id.

Gutierrez contends that the district court committed procedural error by not calculating the Guidelines recommended

sentence for his violation of 18 U.S.C. § 1001, but instead calculating his sentence based on a violation of 18 U.S.C.

§ 1326. Gutierrez alternatively argues that the district court

gave undue weight to one of the § 3553(a) sentencing factors,

deterrence, and that this resulted in a substantively unreasonable sentence. 

[1] B. As noted, the Guidelines provide: 

A plea agreement (written or made orally on the

record) containing a stipulation that specifically

establishes the commission of additional offense(s)

shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s). 

U.S.S.G. § 1B1.2(c). 

The Guidelines further provide that “in the case of a stipulation to the commission of additional offense(s), the guidelines are to be applied as if the defendant had been convicted

of an additional count for each of the offenses stipulated.”

U.S.S.G. § 1B1.2 cmt. n.3. 

In his written plea agreement, after admitting that in 2004

he had made a false statement to a federal official, Gutierrez

stated in the next paragraph: 

3698 UNITED STATES v. GUTIERREZ-SANCHEZ
Defendant agrees further that the offense involved a

violation of a prior, specific administrative order

because defendant is an unlawful alien who was lawfully deported on February 22, 2004[,] prior to the

instant offense and as part of that deportation, defendant was ordered by the immigration judge not to

reenter the United States without requesting and

obtaining permission from the Attorney General or

designated successor, and that this fact results in the

increase in offense level set forth in paragraph 5

below.

[2] Under the Guidelines, Gutierrez’ statement in his plea

agreement constituted a “stipulation that specifically establish[ed] the commission of [the] additional offense” of an

alien illegally present in the United States, in violation of 8

U.S.C. § 1326. Gutierrez admitted all the elements of the latter offense: that (1) he was an alien who (2) had been lawfully

deported and (3) had returned to the United States (4) without

the permission of the Attorney General and (5) had the requisite general intent, i.e., he knew he was illegally in the United

States when he lied to the federal officers about his immigration status. See United States v. Covain-Sandoval, 462 F.3d

1090, 1093, 1094 n.1 (9th Cir. 2006). Because Gutierrez’ plea

agreement establishes the mens rea necessary for a “found in”

offense under § 1326, we need not address his argument that

his plea agreement did not establish the specific intent needed

to violate the prohibition in § 1326 against attempted reentry.

United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1190 (9th

Cir. 2000) (en banc). 

[3] The district court properly treated these statements by

Gutierrez as establishing a conviction under the illegal alien

presence provision of 8 U.S.C. § 1326 for the purposes of calculating Gutierrez’ Guidelines recommended sentence. The

court’s action was in accord with the “grouping” provisions

of the Guidelines governing convictions under multiple

counts, which provide that “in the case of a stipulation to the

UNITED STATES v. GUTIERREZ-SANCHEZ 3699
commission of additional offense(s), the guidelines are to be

applied as if the defendant had been convicted of an additional count for each of the offenses stipulated,” and that in

that situation the offense level used to calculate the defendant’s sentence “is the offense level . . . for the most serious

of the counts comprising the Group, i.e., the highest offense

level of the counts in the Group.” U.S.S.G. 1B1.2, cmt. n.3;

U.S.S.G. § 3D1.3(a); see also U.S.S.G. § 3D1.3 cmt. n.2

(“When counts are grouped . . . the highest offense level of

the counts in the group is used.”). 

C. Since we hold that the district court properly calculated Gutierrez recommended Guidelines sentence under

§ 1326, the remaining question is whether the withinGuidelines sentence of 16 months’ imprisonment was substantively reasonable. The answer is “yes.” 

[4] The district court fully explained the reasons why a

more severe sentence than the guideline range under the false

statement statute of 6-12 months imprisonment was appropriate. The court twice stated that the “real offense,” “the one

that the Guideline calculations should be predicated upon,”

was 8 U.S.C. § 1326, which relates to a removed alien’s illegal presence in the United States. The court also noted Gutierrez’ two prior felony convictions (for which he was

imprisoned) and his 12 illegal re-entries after he had been

removed, and stated that 

it’s incumbent upon me to fashion some kind of sentence which will tell him “we mean business. When

we say ‘don’t come back,’ it’s not just some mantra

that a guy in a black robe waves in front of you or

words that are repeated. We mean it. Don’t come

back. Bad things are going to happen to you if you

come back. You’re going to spend a lot of time in an

American jail, which has got to be worse than your

country.”

3700 UNITED STATES v. GUTIERREZ-SANCHEZ
[5] The district court also considered the factors that 18

U.S.C. § 3553(a) required it to “consider . . . in determining

the particular sentence to be imposed.” The court stated that

it had “reviewed,” “looked at” and “considered” “these [18

U.S.C. § 3553] factors.” One of those factors is “the need for

the sentence imposed to afford adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2)(B). As noted, deterrence

was one factor the court considered in determining the sentence. Contrary to Gutierrez’ contention, the court did not

give that factor impermissible weight or ignore or downplay

the other factors. “The district court need not tick off each of

the § 3553(a) factors to show that it has considered them.”

Carty, 520 F.3d at 992. The weight to be given the various

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

court. Cf. id. at 993. The district court did not abuse its discretion in applying those factors in determining Gutierrez’ sentence and the sentence was substantively reasonable.

AFFIRMED. 

UNITED STATES v. GUTIERREZ-SANCHEZ 3701