NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10166
Plaintiff-Appellee, D.C. No. 2:16-cr-00396-JAT
v.
MEMORANDUM*
ALBERTO CHAVEZ RODELO, a.k.a.
Alberto Rodelo Chavez, a.k.a. Alberto
Rodelo-Chavez,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted January 16, 2018**
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
Alberto Chavez Rodelo appeals from the district court’s judgment and
challenges the 71-month sentence imposed following his jury-trial conviction for
reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291, and we affirm.
Rodelo first argues that the district court erred when it refused to apply a
two-level downward adjustment for acceptance of responsibility under U.S.S.G.
§ 3E1.1. We review the district court’s decision to deny the adjustment for abuse
of discretion and its underlying factual findings for clear error. See United States
v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). The district court
did not abuse its discretion. Contrary to Rodelo’s argument, the district court did
not deny the adjustment because Rodelo went to trial, but rather because he failed
to accept responsibility for his actions. The court did not clearly err in finding that
Rodelo had not expressed genuine contrition prior to sentencing, see United States
v. Rodriguez, 851 F.3d 931, 949 (9th Cir. 2017), and the statements Rodelo made
at sentencing were insufficient to warrant the adjustment. See United States v.
Martinez-Martinez, 369 F.3d 1076, 1090 (9th Cir. 2004).
Rodelo also contends that his sentence is substantively unreasonable. The
district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,
51 (2007). The above-Guidelines sentence is substantively reasonable in light of
the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances,
including Rodelo’s criminal history. See Gall, 552 U.S. at 51.
2 17-10166
We decline to consider Rodelo’s claim concerning the court’s calculation of
the Guidelines range, which he raised for the first time in his reply brief. See
United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995).
AFFIRMED.
3 17-10166