FILED
NOT FOR PUBLICATION JAN 28 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50570
Plaintiff - Appellee, D.C. No. 3:14-cr-00155-JLS
v.
MEMORANDUM*
MARIO SOTELO-AYALA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Mario Sotelo-Ayala appeals from the district court’s judgment and
challenges the 60-month sentence imposed following his guilty-plea conviction for
attempted reentry of a removed alien, 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).
Sotelo-Ayala asserts that the district court procedurally erred by failing to
appreciate its discretion under Kimbrough v. United States, 552 U.S. 85 (2007), to
deviate from the Guidelines based on policy disagreements. We disagree. The
record reflects that the court considered Sotelo-Ayala’s Kimbrough argument, and
that it was aware of its discretion to vary from the Guidelines. See United States v.
Ayala-Nicanor, 659 F.3d 744, 753 (9th Cir. 2011) (“[T]hat the court imposed a
below Guidelines sentence demonstrates that it was well aware of its ability to do
so under Supreme Court precedent.”).
Sotelo-Ayala next contends that the district court procedurally erred by
failing to consider his sentencing arguments and by failing to explain adequately
its sentencing decision. Reviewing de novo, see United States v. Grissom, 525
F.3d 691, 695-96 (9th Cir. 2008), we find no error. The record demonstrates that
the district court considered and addressed Sotelo-Ayala’s arguments for leniency,
and the court’s explanation of the sentence was adequate. See United States v.
Amezcua-Vasquez, 567 F.3d 1050, 1053-54 (9th Cir. 2009).
AFFIRMED.
2 14-50570