FILED
NOT FOR PUBLICATION MAR 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50230
Plaintiff - Appellee, D.C. No. 2:13-cr-00003-CAS
v.
MEMORANDUM*
GABRIEL JIMENEZ-ALVARADO, a.k.a.
Gabriel Alvarado, a.k.a. Gabriel Jimenez,
a.k.a. Gabriel A. Jimenez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
Gabriel Jimenez-Alvarado appeals from the district court’s judgment and
challenges the 46-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 an illegal alien found in the United States following deportation, in violation
of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Jimenez-Alvarado 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 Guidelines range on policy grounds, and by
failing to explain how it exercised that discretion. Because Jimenez-Alvarado did
not raise these objections in the district court, we review for plain error. See
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). We find
none. The record reflects that the district court appreciated its discretion to vary
below the Guidelines range, but declined to do so because it found
Jimenez-Alvarado’s policy challenge and mitigating arguments unpersuasive. See
United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011) (“[D]istrict courts
are not obligated to vary from the . . . Guidelines on policy grounds if they do not
have, in fact, a policy disagreement with them.”). Moreover, the court’s
explanation for the sentence was sufficient. See United States v. Ayala-Nicanor,
659 F.3d 744, 752-53 (9th Cir. 2011).
Jimenez-Alvarado also contends that his sentence is substantively
unreasonable in light of problems with U.S.S.G. § 2L1.2, his early plea, and his
history and characteristics. The district court did not abuse its discretion in
2 13-50230
imposing Jimenez-Alvarado’s sentence. See Gall v. United States, 552 U.S. 38, 51
(2007). Jimenez-Alvarado’s 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 Jimenez-Alvarad’s criminal history.
See id.
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062
(9th Cir. 2000), we remand the case to the district court with instructions that it
delete from the judgment the reference to section 1326(b)(2). See United States v.
Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to
delete the reference to section 1326(b)).
AFFIRMED; REMANDED to correct the judgment.
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