United States v. Abraham Gutierrez

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NOT FOR PUBLICATION MAR 17 2014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, Nos. 12-50351
12-50436
Plaintiff - Appellee,
D.C. Nos. 2:03-cr-00460-RSWL
v. 2:03-cr-00460-ODW

ABRAHAM FERREL GUTIERREZ, MEMORANDUM*

Defendant - Appellant.

Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding

Submitted March 10, 2014**

Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.

In these consolidated appeals, Abraham Ferrel Gutierrez appeals from the

district court’s order granting his 18 U.S.C. § 3582(c)(2) motion for reduction of

sentence and the order denying his motion for reconsideration. We have

jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, see United

*
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).
States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012); United States v. Tapia-

Marquez, 361 F.3d 535, 537 (9th Cir. 2004), and we affirm.

Preliminarily, we reject the government’s contention that we lack

jurisdiction over this appeal. See United States v. Dunn, 728 F.3d 1151, 1155-58

(9th Cir. 2013).

The district court granted Gutierrez’s section 3582(c)(2) motion, reducing

his sentence from 200 to 160 months. Gutierrez contends that the district court

procedurally erred by failing to explain adequately why his post-sentencing

conduct was not sufficient to support a sentence reduction to 151 months. This

contention is unpersuasive. The record reflects that the district court considered

Gutierrez’s post-sentencing rehabilitation and adequately explained the 160-month

sentence. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

Gutierrez also contends that the sentence is substantively unreasonable

because the district court gave insufficient weight to his post-sentencing conduct

and excessive weight to the drug quantity relied on at the original sentencing. The

district court did not abuse its discretion in imposing Gutierrez’s sentence. See

Dunn, 728 F.3d at 1157. In light of the totality of the circumstances and the

section 3553(a) sentencing factors, the sentence is substantively reasonable. See

id. at 1159-60; United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir.

2 12-50351 & 12-50436
2009) (“The weight to be given the various factors in a particular case is for the

discretion of the district court.”). Moreover, the district court did not abuse its

discretion by denying Gutierrez’s motion for reconsideration. See Tapia-Marquez,

361 F.3d at 537.

AFFIRMED.

3 12-50351 & 12-50436