United States v. Daniel Plancarte

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                                                                           FILED
                            NOT FOR PUBLICATION                            MAR 22 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50011

               Plaintiff - Appellee,             D.C. No. 3:10-cr-04069-JAH

  v.
                                                 MEMORANDUM*
DANIEL DUARTE PLANCARTE, a.k.a.
Daniel Duarte-Plancarte,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                             Submitted March 12, 2013**

Before:        PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

       Daniel Duarte Plancarte appeals from the district court’s judgment and

challenges the 60-month sentence imposed following his guilty-plea conviction for

being a deported alien found in the United States, in violation of 8 U.S.C. § 1326.


          *
             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).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Plancarte contends that the district court procedurally erred by failing to (i)

consider all of the 18 U.S.C. § 3553(a) sentencing factors, (ii) address his

mitigating arguments, and (iii) explain the sentence imposed. He also argues that

the court relied on an improper sentencing factor, namely the length of the sentence

imposed for a prior conviction. We review for plain error, see United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The

record reflects that the district court properly considered the section 3553(a)

sentencing factors, including the need to deter. Moreover, the court listened to

Plancarte’s policy and mitigating arguments, and adequately explained the

sentence imposed. See United States v. Perez-Perez, 512 F.3d 514, 516-17 (9th

Cir. 2008).

      Plancarte also contends that his sentence is substantively unreasonable. The

district court did not abuse its discretion in imposing Plancarte’s sentence. See

Gall v. United States, 552 U.S. 38, 51 (2007). The sentence 17 months below the

advisory Guidelines range is substantively reasonable in light of the section

3553(a) sentencing factors and the totality of the circumstances. See id.

      AFFIRMED.




                                           2                                      12-50011