FILED
NOT FOR PUBLICATION OCT 04 2010
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. 09-30363
Plaintiff - Appellee, D.C. No. 9:09-cr-00004-DWM
v.
MEMORANDUM *
ALFONZO HECTOR PENA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Alfonzo Hector Pena appeals from the 188-month sentence imposed
following his guilty-plea conviction for possession with intent to sell of 50 grams
or more of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
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).
Pena contends that his sentence is substantively unreasonable because the
career offender enhancement under U.S.S.G. § 4B1.1(a) over-represents the
seriousness of Pena’s past offenses and does not account for the nature and
circumstances of the offense or Pena’s history and characteristics. The record
reflects that the district court correctly determined that the career offender
enhancement applies, that it has considered and addressed all of the factors set
forth in 18 U.S.C. § 3553(a), and that it did not otherwise procedurally err. See
United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc); see also
United States v. Diaz-Argueta, 564 F.3d 1047, 1051-52 (9th Cir. 2009). The
record further reflects that, under the totality of the circumstances, Pena’s sentence
is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51-52 (2007);
see also United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).
AFFIRMED.
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