FILED
NOT FOR PUBLICATION FEB 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50205
Plaintiff - Appellee, D.C. No. 3:12-cr-04543-WQH
v.
MEMORANDUM*
JUAN RODRIGUEZ-GONZALEZ, a.k.a.
Juan Flores Rodriguez, a.k.a. Juan Manuel
Rodriguez,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Juan Rodriguez-Gonzalez appeals from the district court’s judgment and
challenges the 37-month sentence imposed following his guilty-plea conviction for
being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.
*
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).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Rodriguez-Gonzalez contends that the district court procedurally erred by
failing to appreciate its discretion under Kimbrough v. United States, 552 U.S. 85
(2007), to vary downward from the Guideline range on policy grounds. The record
reflects that the court considered Rodriguez-Gonzalez’s policy-based arguments
and declined to exercise its discretion to vary from the Guidelines. See United
States v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011).
Rodriguez-Gonzalez also contends that his sentence is substantively
unreasonable because this is his first immigration conviction. He argues that the
district court gave too much weight to his criminal history, which was already
factored into the Guideline range, and did not give sufficient consideration to the
need to avoid unwarranted sentencing disparities, the nature and circumstances of
the offense, and the fact that he had not previously spent more than a year in jail.
The district court did not abuse its discretion in imposing Rodriguez-Gonzalez’s
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The 37-month
sentence at the bottom of the Guidelines range is substantively reasonable in light
of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances,
including Rodriguez-Gonzalez’s criminal and immigration history. See id.
AFFIRMED.
2 13-50205