NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10315
Plaintiff - Appellee, D.C. No. 3:12-cr-00561-WHA
v.
MEMORANDUM*
MICHAEL STEVEN BANUELOS, a.k.a.
Ferrari Mike,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Michael Steven Banuelos appeals from the district court’s judgment and
challenges the 78-month sentence imposed following his guilty-plea conviction for
wire fraud, in violation of 18 U.S.C. § 1343. We have jurisdiction under 28
*
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).
U.S.C. § 1291, and we affirm.
Banuelos contends that the district court (1) procedurally erred by according
excessive weight to factors that were already incorporated into the Guidelines range,
and (2) procedurally erred and violated Banuelos’s right to due process by
considering clearly erroneous and unreliable facts from a victim impact statement.
These claims fail. The court did not err by varying upward based upon its
determination that the Guidelines range did not adequately account for the
egregiousness of Banuelos’s conduct. See United States v. Christensen, 732 F.3d
1094, 1100-01 (9th Cir. 2013) (court may vary upward based on factors already
incorporated into the Guidelines calculations). Further, insofar as the district court
considered the victim impact statement, the court did not err because Banuelos has
not shown that the statement was false or unreliable. See id. at 1104-06 & n.2.
Banuelos next contends that his sentence is substantively unreasonable in
light of the mitigating factors and the parties’ joint request for a within-Guidelines
sentence. The sentence is substantively reasonable in light of the 18 U.S.C.
§ 3553(a) sentencing factors and the totality of the circumstances, including the
nature of the offense. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2 13-10315