NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50034
Plaintiff - Appellee, D.C. No. 3:13-cr-03690-DMS
v.
MEMORANDUM*
ADAN USCANGA-GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Adan Uscanga-Gonzalez appeals from the district court’s judgment and
challenges the 27-month sentence imposed following his guilty-plea conviction for
being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.
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).
Uscanga-Gonzalez contends that the district court procedurally erred by
failing to explain adequately the upward variance and failing to consider or address
his sentencing arguments. 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 district court considered Uscanga-Gonzalez’s arguments
and sufficiently explained the reasons for imposing the above-Guidelines sentence.
See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Contrary
to Uscanga-Gonzalez’s contention, the court did not err by using his previous
sentence for the same offense as a benchmark. See United States v.
Higuera-Llamos, 574 F.3d 1206, 1211-12 (9th Cir. 2009).
Uscanga-Gonzalez next contends that the sentence is substantively
unreasonable in light of the mitigating factors and the alleged procedural errors,
and because the district court relied upon disputed facts underlying a previous state
conviction. The district court did not abuse its discretion in imposing
Uscanga-Gonzalez’s sentence. See Gall United States, 552 U.S. 38, 51 (2007).
The sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a)
sentencing factors and the totality of the circumstances, including
Uscanga-Gonzalez’s immigration history. See Gall, 552 U.S. at 51; see also
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United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (“The
weight to be given the various factors in a particular case is for the discretion of the
district court.”). Moreover, the court’s reliance on the disputed facts does not
render the sentence unreasonable because Uscanga-Gonzalez has not shown that
the disputed facts were false or unreliable. See United States v. Vanderwerfhorst,
576 F.3d 929, 935-36 (9th Cir. 2009).
AFFIRMED.
3 14-50034