FILED
NOT FOR PUBLICATION AUG 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50100
Plaintiff - Appellee, D.C. No. 3:08-cr-00625-JAH
v.
MEMORANDUM *
JAVIER MORENO-MENDOZA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted August 8, 2012 **
Before: ALARCÓN, BERZON, and IKUTA, Circuit Judges.
Javier Moreno-Mendoza appeals from the 6-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).
Moreno-Mendoza contends that the district court procedurally erred because
it failed to consider the 18 U.S.C. § 3583(e) sentencing factors, failed to consider
his arguments in mitigation, and failed adequately to explain his sentence. The
district court listened to Moreno-Mendoza’s mitigating arguments and then
imposed a below-Guidelines sentence. It did not plainly err. See United States v.
Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010).
Moreno-Mendoza also contends that his sentence is substantively
unreasonable because the district court failed to properly consider the sentencing
factors. The below-Guidelines sentence is substantively reasonable in light of the
totality of the circumstances and the section 3583(e) sentencing factors. See Gall
v. United States, 552 U.S. 38, 51 (2007).
Moreno-Mendoza’s contention that section 3583(e)(3) is unconstitutional is
foreclosed by United States v. Santana, 526 F.3d 1257, 1262 (9th Cir. 2008).
AFFIRMED.
2 12-50100