FILED
NOT FOR PUBLICATION AUG 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10555
Plaintiff - Appellee, D.C. No. 3:13-cr-00318-RS
v.
MEMORANDUM*
JAIME VICENTE CABALLERO, a.k.a.
Jaime Vicente Caballe Aguilar,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted August 13, 2014**
Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.
Jaime Vicente Caballero appeals from the district court’s judgment and
challenges the 24-month sentence imposed following his guilty-plea conviction for
reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction
*
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).
under 28 U.S.C. § 1291, and we affirm.
Caballero contends that the district court procedurally erred by failing to
address his argument that the illegal reentry guideline, U.S.S.G. § 2L1.2, lacks a
sound empirical or policy basis, and by failing to appreciate its discretion under
Kimbrough v. United States, 552 U.S. 85 (2007), to vary downward from the
applicable Guidelines range on policy grounds. Contrary to Caballero’s
contention, we review for plain error because he did not raise these objections in
the district court. See United States v. Valencia-Barragan, 608 F.3d 1103, 1108 &
n.3 (9th Cir. 2010). We find none. The record reflects that the district court
considered Caballero’s sentencing memorandum, which contained his Kimbrough-
based challenges to the Guideline. Caballero has not shown a reasonable
probability that he would have received a different sentence had the district court
explicitly addressed his Kimbrough arguments. See United States v. Dallman, 533
F.3d 755, 762 (9th Cir. 2008).
Caballero also maintains that, although the district court credited his
mitigating arguments regarding his cultural assimilation and rehabilitation, his
sentence is nevertheless substantively unreasonable. The district court did not
abuse its discretion in imposing Caballero’s sentence. See Gall v. United States,
552 U.S. 38, 51 (2007). Caballero’s sentence 17 months below the bottom of the
2 13-10555
Guidelines range is substantively reasonable in light of the 18 U.S.C. § 3553(a)
sentencing factors and the totality of the circumstances, including the need to deter
and to reflect the seriousness of the offense. See id.
The court has not relied on the Statement of Reasons, and we deny the
motion to strike.
AFFIRMED.
3 13-10555