USA V. JESUS MENESES-LOPEZ, No. 12-10387 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 18 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 12-10387 D.C. No. 2:11-cr-02270-ROS v. MEMORANDUM* JESUS MENESES-LOPEZ, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding Submitted December 17, 2013** Before: GOODWIN, WALLACE, and GRABER, Circuit Judges. Jesus Meneses-Lopez appeals from the district court s judgment and challenges the 57-month sentence imposed following his guilty-plea conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326. 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). Meneses-Lopez contends that the district court procedurally erred by failing to recognize its discretion to vary downward from the Guideline range based upon policy grounds under Kimbrough v. United States, 552 U.S. 85 (2007). The record belies this contention. The district court recognized, but chose not to exercise, its Kimbrough discretion to vary from the Guidelines. See United States v. AyalaNicanor, 659 F.3d 744, 752-53 (9th Cir. 2011). Meneses-Lopez also argues that his sentence is substantively unreasonable in light of the age of his 1998 felony conviction and other mitigating factors. The district court did not abuse its discretion in imposing Meneses-Lopez s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentence at the bottom of the Guidelines range is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including MenesesLopez s overall criminal history and the need for deterrence and protection of the public. See id. AFFIRMED. 2 12-10387

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