NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 27 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 10-50314
Plaintiff - Appellee, D.C. No. 3:10-cr-01024-LAB-1
v.
MEMORANDUM *
CARLOS VALENZUELA-QUINTERO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted December 9, 2011
Pasadena, California
Before: PREGERSON and PAEZ, Circuit Judges, and JONES,** District Judge.
Carlos Valenzuela-Quintero appeals the district court’s sentence of 56
months in custody. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
“It would be procedural error for a district court to fail to calculate—or to
calculate incorrectly—the Guidelines range; to treat the Guidelines as mandatory
instead of advisory; to fail to consider the § 3553(a) factors; to choose a sentence
based on clearly erroneous facts; or to fail adequately to explain the sentence
selected, including any deviations from the Guidelines range.” United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
The district court did not commit procedural error in the instant case. The
district court clearly understood its responsibility to calculate the Guidelines range
correctly at the beginning of the sentencing process, and it did so. See id. at 991.
Furthermore, the district court understood that the Guidelines are advisory. See
United States v. Booker, 543 U.S. 220 (2005). Finally, the district court considered
the factors enumerated in 18 U.S.C. § 3553(a), including the Guidelines range, in
sentencing Valenzuela-Quintero, and explained its choice of sentence sufficiently.
See Carty, 520 F.3d at 991. Any misunderstanding of Spears v. United States, 555
U.S. 261 (2009), or of Valenzuela-Quintero’s written objections to the pre-
sentence report, was harmless error. See United States v. Munoz-Camarena, 631
F.3d 1028, 1030 (9th Cir. 2011) (harmless error standard applies to mistakes made
in sentencing).
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Because Valenzuela-Quintero made no cognizable policy argument along
the lines of Kimbrough v. United States, 552 U.S. 85 (2007) in his written
objections to the pre-sentence report or at the sentencing hearing, the district court
was not required to address such an argument in explaining the basis for its
sentence. See United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011).
The district court did not abuse its discretion in declining to follow United
States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009) when deciding whether
to vary from the Sentencing Guidelines range. The district court’s discussion of
Amezcua-Vasquez simply distinguished that opinion from the instant case on the
facts, and declined to extend its holding. The existence of proposed amendments
to the relevant Sentencing Guidelines that would impose only an 8-level
enhancement for a prior conviction that no longer scores for criminal history points
does not affect Amezcua-Vasquez’s applicability as precedent. See United States v.
Hernandez-Valdovinos, 352 F.3d 1243, 1249 (9th Cir. 2003).
AFFIRMED.
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