FILED
NOT FOR PUBLICATION MAR 13 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50090
Plaintiff - Appellee, D.C. No. 3:07-cr-00959-GT
v.
MEMORANDUM*
JUAN MANUEL GUTIERREZ-
HERRERA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., District Judge, Presiding
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
Juan Manuel Gutierrez-Herrera appeals from the district court’s judgment
and challenges the 24-month sentence imposed upon revocation of supervised
release. 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).
Gutierrez-Herrera contends that the district court erred by (i) failing to
calculate the Guidelines range and using the statutory maximum as a initial
benchmark for sentencing; (ii) failing to consider the applicable 18 U.S.C.
§ 3553(a) sentencing factors and his mitigating arguments; (iii) failing to explain
adequately the sentence imposed; and (iv) improperly relying on the need to
promote respect for the law in fashioning the sentence. We review for plain error,
see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and
find none. The record reflects that the court was aware of the Guidelines range and
used that range as the initial benchmark. In addition, the court adequately
considered Gutierrez-Herrera’s mitigating arguments and the applicable section
3553(a) sentencing factors, sufficiently explained the sentence, and did not choose
the sentence based on an improper factor. See United States v. Carty, 520 F.3d
984, 992-93 (9th Cir. 2008) (en banc).
Gutierrez-Herrera next contends that his sentence is substantively
unreasonable. The district court did not abuse its discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable in light of
the totality of the circumstances and the 18 U.S.C. § 3583(e) sentencing factors,
including Gutierrez-Herrera’s failure to be deterred and breach of the court’s trust.
See id.; United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007).
AFFIRMED.
2 13-50090