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.
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).
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,
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.
At sentencing, the district court stated that it would "vary up" and impose an above-Guidelines sentence:
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-month sentence. The court then discussed his second illegal re-entry conviction:
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:
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" in Burgos-Ortega's story. Burgos-Ortega's counsel offered to provide additional information, but the court explained:
Burgos-Ortega renewed his objections to the sentence and subsequently filed a timely notice of appeal.
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.
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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under this approach,
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
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 Fed.Appx. at 865-67.
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, 127 S.Ct. 815, 166 L.Ed.2d 683 (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:
Id. at 193, 127 S.Ct. 815; see also Moncrieffe v. Holder, ___ U.S. ___, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013) (quoting Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815). 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, 127 S.Ct. 815.
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")
In contrast, in the unpublished opinion United States v. Villeda-Mejia, 559 Fed. Appx. 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:
Id. at 389.
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
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.
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:
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.
Burgos-Ortega next argues that the district court clearly erred because its
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.
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. Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (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.
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
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 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.
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 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