FILED
NOT FOR PUBLICATION DEC 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50091
Plaintiff - Appellee, D.C. No. 3:14-cr-02829-BEN
v.
MEMORANDUM*
JUAN VICTOR RUBIO-SANCHEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
Juan Victor Rubio-Sanchez appeals from the district court’s judgment and
challenges the 24-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).
Rubio-Sanchez first contends that the district court procedurally erred by
placing undue emphasis on the length of his prior illegal reentry sentence, and by
imposing an upward variance under 18 U.S.C. § 3553(a), rather than departures
tethered to the Guidelines. We review for plain error, see United States v. Valencia-
Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. Rubio-Sanchez’s
failure to be deterred by his previous 24-month sentence was a relevant sentencing
consideration. See 18 U.S.C. § 3553(a)(2)(B). Moreover, the record does not
support Rubio-Sanchez’s contention that the district court failed to consider the
other statutory sentencing factors and his mitigating arguments. Finally, the court’s
decision to impose an upward variance rather than specific Guidelines departures
was not improper. See United States v. Booker, 543 U.S. 220, 245 (2005).
Contrary to Rubio-Sanchez’s argument, the record makes clear the basis for the
variance, permitting meaningful appellate review.
Rubio-Sanchez further contends that the above-Guidelines sentence is
substantively unreasonable. The district court did not abuse its discretion. See Gall
v. United States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable
in light of the section 3553(a) factors and the totality of the circumstances,
including Rubio-Sanchez’s criminal record, immigration history, and failure to be
deterred by prior sentences. See Gall, 552 U.S. at 51.
AFFIRMED.
2 15-50091