FILED
NOT FOR PUBLICATION JUN 20 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50295
Plaintiff - Appellee, D.C. No. 3:12-cr-03863-LAB
v.
MEMORANDUM*
FIDEL MENDEZ-MALDONADO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted June 14, 2016**
Before: BEA, WATFORD, and FRIEDLAND, Circuit Judges.
Fidel Mendez-Maldonado appeals from the district court’s judgment and
challenges the 24-month sentence imposed upon revocation of supervised release.
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).
Mendez-Maldonado contends that the district court’s explanation for the
above-Guidelines sentence was inadequate because it erroneously relied on
application note 4 to U.S.S.G. § 7B1.4 to justify the upward variance. He further
contends that the court procedurally erred and violated his right to due process by
relying on clearly erroneous facts, namely, that Mendez-Maldonado received a
“tremendous break” when he received a six-month sentence for a new immigration
conviction, and that he drove drunk on more occasions than the five incidents for
which he was convicted. These claims fail. We do not review for procedural
correctness the district court’s reliance on application note 4 to U.S.S.G. § 7B1.4.
See United States v. Christensen, 801 F.3d 970, 1024 (9th Cir. 2015). The record
reflects that the district court adequately explained the sentence. See United States
v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Furthermore, the district
court did not rely on any clearly erroneous facts. See United States v. Graf, 610
F.3d 1148, 1157 (9th Cir. 2010) (“A finding is clearly erroneous if it is illogical,
implausible, or without support in the record.”).
Mendez-Maldonado also contends that his sentence is substantively
unreasonable because the district court’s reasoning was influenced, at least
implicitly, by the concept of punishment and because the court placed too much
weight on some of the 18 U.S.C. § 3583(e) sentencing factors. The district court
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did not abuse its discretion in imposing Mendez-Maldonado’s sentence. See Gall
v. United States, 552 U.S. 38, 51 (2007). The above-Guidelines sentence is
substantively reasonable in light of the section 3583(e) sentencing factors and the
totality of the circumstances, including Mendez-Maldonado’s criminal and
immigration history and his failure to be deterred from reentering the country by
his prior 24-month sentence. See Gall, 552 U.S. at 51.
AFFIRMED.
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