FILED
NOT FOR PUBLICATION AUG 01 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30236
Plaintiff - Appellee, D.C. No. 1:10-cr-30010-PA
v.
MEMORANDUM *
JOSE EMILIANO DIAZ-LARA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Jose Emiliano Diaz-Lara appeals from the district court’s judgment and
challenges the 168-month sentence imposed following his guilty-plea conviction
for conspiracy to distribute and possession with intent to distribute more than 50
grams of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(b)(1)(A)(viii), and 846. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
Diaz-Lara contends that the district court procedurally erred by failing to
explain adequately why it declined to grant a downward variance and by failing to
address Diaz-Lara’s argument regarding his comparative culpability. We review
for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th
Cir. 2010), and find none. The district court entertained the parties’ arguments,
concluded that the 18 U.S.C. § 3553(a) sentencing factors distinguished Diaz-
Lara’s case from that of his codefendant, and adequately explained Diaz-Lara’s
sentence.
Diaz-Lara also contends that his sentence is substantively unreasonable. The
district court did not abuse its discretion in imposing Diaz-Lara’s sentence. See
Gall v. United States, 552 U.S. 38, 51 (2007). In light of the totality of the
circumstances and the section 3553(a) sentencing factors, the sentence at the
bottom of the Guidelines range is substantively reasonable. See id.
We decline to consider Diaz-Lara’s ineffective assistance of counsel claim
on direct appeal because the record is insufficiently developed. See United States
v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003). Diaz-Lara’s request for
2 12-30236
appointment of counsel is denied without prejudice to refiling in the district court
in the event he files a motion under 28 U.S.C. § 2255.
Diaz-Lara’s motion to strike the government’s supplemental excerpt of
record is denied.
AFFIRMED.
3 12-30236