FILED
NOT FOR PUBLICATION NOV 04 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10620
Plaintiff - Appellee, D.C. No. 2:11-cr-00206-KJM-1
v.
MEMORANDUM*
KIRBY ALLEN REYNOLDS, a.k.a.
Kirby Alan Reynolds,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted September 12, 2013**
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Kirby Allen Reynolds appeals from the district court’s judgment and
challenges the 63-month sentence imposed following his guilty-plea conviction for
*
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).
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Reynolds contends that the category VI criminal history substantially over-
represented his criminal history and that the district court therefore abused its
discretion by failing to depart under U.S.S.G. § 4A1.3(b)(1) or vary downwards.
When a district court makes a decision regarding whether to depart under U.S.S.G.
§ 4A1.3, we do not determine whether the court correctly applied § 4A1.3, but
instead determine whether the ultimate sentence was substantively reasonable. See
United States v. Ellis, 641 F.3d 411, 421-22 (9th Cir. 2011); see also United States
v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006). We review the sentence for abuse
of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).
The district court did not abuse its discretion in imposing the 63-month
sentence. The sentence is not substantively unreasonable in light of the totality of
the circumstances and the 18 U.S.C. § 3553(a) factors, such as the appellant’s
extensive criminal history, including two prior state convictions for being a felon
in possession of a firearm, and the need to provide deterrence and promote respect
for the law. See id.
AFFIRMED.
2