NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 20 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-50635
Plaintiff - Appellee, D.C. No. 2:10-cr-00928-GHK
v.
MEMORANDUM*
JOSE REFUGIO MEDINA-RIVERA,
a.k.a. Jose Medina-Rivera,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Submitted April 13, 2012**
Pasadena, California
Before: KLEINFELD and M. SMITH, Circuit Judges, and SAMMARTINO,
District Judge.***
*
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).
***
The Honorable Janis L. Sammartino, U.S. District Judge for the
Southern District of California, sitting by designation.
Jose Refugio Medina-Rivera appeals the 36-month sentence imposed
following his guilty-plea conviction for illegal reentry under 8 U.S.C. § 1326(a).
His prior deportation was subsequent to an aggravated felony conviction, such that
he was subject to a 16-level sentencing enhancement under the illegal reentry
guideline, U.S.S.G. § 2L1.2. He challenges his sentence on procedural grounds,
arguing that the district court failed to appreciate its discretion to vary from the
Sentencing Guidelines based on a policy disagreement with § 2L1.2, and failed to
adequately explain its reasoning. He further challenges the sentence as
substantively unreasonable. As the facts and procedural history are familiar to the
parties, we do not recite them here except as necessary to explain our disposition.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not procedurally err by failing to appreciate fully its
discretion under Kimbrough v. United States, 552 U.S. 85, 109 (2007), to vary
from the Guidelines based on a policy disagreement, or by failing to explain
adequately its exercise of that discretion. We recently held that a district court
sufficiently evinces an understanding of its Kimbrough discretion by
acknowledging the advisory nature of the Guidelines in response to a policy-based
challenge. United States v. Alaya-Nicanor, 659 F.3d 744, 752 (9th Cir. 2011)
(affirming sentencing enhancement based on a prior crime of violence under
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§ 2L1.2 where the district court stated it had considered the arguments presented,
which included an argument under Kimbrough, and then “did in fact impose a
sentence that varied from the Guidelines range—just not by as many months as
Alaya requested”). Here, the district court likewise fulfilled this duty by stating it
had considered all of the parties’ arguments, noting its discretion to vary from the
Guidelines, and imposing a below-Guidelines sentence based on the 18 U.S.C.
§ 3553(a) factors.
Similarly, the district court adequately explained the basis for the sentence
imposed. The district court’s discussion of various § 3553(a) factors and its
reasoning for varying from the Guidelines was both thorough and extensive,
sufficient to “communicate[ ] that the parties’ arguments have been heard, and that
a reasoned decision has been made.” United States v. Carty, 520 F.3d 984, 992
(9th Cir. 2008) (en banc). We have not imposed a requirement that the district
court explicitly address its decision to vary based on § 3553(a) considerations
rather than Kimbrough-type considerations.
Lastly, Medina-Rivera has not shown that his sentence is substantively
unreasonable based on the totality of the circumstances. See Carty, 520 F.3d at
993. Medina-Rivera’s prior felony conviction for infliction of corporal injury on a
cohabitant is a serious crime of violence and is not his only offense resulting from
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a physical altercation with his girlfriend. The ten-month downward variance
imposed by the district court took into account whether in the circumstances of this
particular offense the16-level Guidelines enhancement was too harsh, as well as his
early guilty plea and the mitigating factors presented by his personal background.
We also reject Medina-Rivera’s assertion that his sentence should be vacated based
on flaws in § 2L1.2. Cf. United States v. Salazar-Mojica, 634 F.3d 1070, 1074
(9th Cir. 2011) (increases in offense levels under § 2L1.2 are not unjustified or
substantively unreasonable) (citing cases). Thus, Medina-Rivera’s below-
Guidelines sentence is substantively reasonable.
AFFIRMED.
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