United States v. Francisco Casteneda

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 18 2014

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 13-10125

Plaintiff - Appellee, D.C. No. 2:03-cr-00549-WBS-1

v.
MEMORANDUM*
FRANCISCO MEDINA CASTENEDA,

Defendant - Appellant.

Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding

Submitted December 18, 2013**

Before: HUG, FARRIS, and LEAVY, Circuit Judges.

Francisco Medina Casteneda appeals from the district court’s order denying

his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction

under 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).
Casteneda’s sentence is within the modified Sentencing Guidelines range.

However, he contends that he argued before the district court that the disparity

between his sentence and the sentences of his co-conspirators warranted a sentence

reduction under 18 U.S.C. § 3553(a)(6) and that the district court erred by failing

to address that argument. Because Casteneda did not object below, we review for

plain error. See United States v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008).

Casteneda has not shown plain error affecting his substantial rights. See id.; see

also United States v. Carty, 520 F.3d 984, 992-93, 995-96 (9th Cir. 2008) (en

banc). Casteneda’s reliance on United States v. Trujillo, 713 F.3d 1003, 1008-10

n.5 (9th Cir. 2013), is misplaced because, unlike Casteneda, Trujillo raised

extensive non-frivolous arguments tethered to specific § 3553(a) factors and

received a sentence above the modified Guidelines range. In addition, Casteneda

has not shown a reasonable probability that the sentence would have been different

absent the alleged error. See Dallman, 533 F.3d at 761-62.

AFFIRMED.