FILED
NOT FOR PUBLICATION DEC 22 2010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. 10-30106
Plaintiff - Appellee, D.C. No. 1:08-cr-00104-RFC-1
v.
MEMORANDUM *
ANTHONY RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted December 6, 2010
Seattle, Washington
Before: BEEZER, O’SCANNLAIN, and PAEZ, Circuit Judges.
Anthony Rodriguez appeals the sentence imposed by the district court for
two counts of distribution of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1). Rodriguez argues that the district judge erred by applying a career
offender enhancement based in part on an offense he committed when he was 17
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
years old. The facts of this case are known to the parties. We do not repeat them.
We review sentencing decisions, “whether inside or outside the Guidelines
range,” for abuse of discretion. Gall v. United States, 552 U.S. 38, 49 (2007).
First, we “ensure that the district court committed no significant procedural error.”
Id. at 51. Then, applying an abuse-of-discretion standard, we “consider the
substantive reasonableness of the sentence” based on “the totality of the
circumstances.” Id. We do not apply a presumption of reasonableness for
sentences within the Guidelines range, but we recognize that a correctly calculated
Guidelines sentence “‘will usually be reasonable.’” United States v. Carty, 520
F.3d 984, 994 (9th Cir. 2008) (en banc) (quoting Rita v. United States, 551 U.S.
338, 351 (2007)).
We find no procedural error in the district court’s analysis. As required, the
district court correctly calculated Rodriguez’s Guidelines sentence, considered
each of Rodriguez’s arguments, and imposed a sentence that the court found
necessary based on the factors in 18 U.S.C. § 3553(a). See Carty, 520 F.3d at 991
(outlining the framework for sentencing). As Rodriguez concedes, the district
court’s designation of Rodriguez as a career offender falls squarely within the
Guidelines because Rodriguez was convicted of deliberate homicide as an adult
under Montana law. See U.S. Sentencing Guidelines Manual §§ 4B1.1(a), 4B1.2
2
& cmt. n.1.
Further, the district court did not impose a substantively unreasonable
sentence in this case. Rodriguez argues that the district court should have
categorically rejected the career enhancement based on potential sentencing
disparities and other policy reasons. Rodriguez correctly notes that a district court
may categorically reject a Guidelines provision because of a policy disagreement.
See Spears v. United States, 129 S. Ct. 840, 843 (2009). But we cannot say that the
district court was required to reject the Guidelines sentence in this case.
We find no evidence that the district court abused its discretion by rejecting
Rodriguez’s policy arguments and imposing a sentence within the Guidelines. The
court explicitly considered Rodriguez’s arguments but rejected them based on
Rodriguez’s criminal history, which continued well into adulthood. Although
courts must consider unwarranted sentencing disparities under 18 U.S.C.
§ 3553(a)(6), “sentencing disparity is only one factor a court considers in crafting
an individualized sentence under § 3553(a).” United States v. Treadwell, 593 F.3d
990, 1012 (9th Cir. 2010). In light of all the § 3553(a) factors, the district court
reasonably concluded that a sentence of 300 months was necessary.
AFFIRMED.
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