USA V. JESUS REYES-LIZARRAGA, No. 16-10353 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED JUL 17 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, U.S. COURT OF APPEALS Nos. 16-10353 16-10354 Plaintiff-Appellee, D.C. Nos. 4:16-cr-00292-CKJ-LAB 4:12-cr-02573-CKJ-LAB v. JESUS REYES-LIZARRAGA, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Submitted July 11, 2017** Before: CANBY, KOZINSKI, and HAWKINS, Circuit Judges. In these consolidated appeals, Jesus Reyes-Lizarraga appeals the 28-month sentence imposed following his guilty-plea conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326, and the four-month consecutive sentence imposed upon revocation of supervised release. We have jurisdiction under 28 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). U.S.C. § 1291, and we affirm. Reyes-Lizarraga contends that his aggregate sentence is substantively unreasonable because the district court failed to give sufficient weight to the 2016 amendments to the illegal reentry guideline, U.S.S.G. § 2L1.2, which were promulgated but not effective at the time of his sentencing. The record reflects that the court took account of the pending changes to the guideline and granted a significant downward variance. The court did not abuse its discretion in determining that a further downward variance was unwarranted in light of the 18 U.S.C. §3553(a) factors and the totality of the circumstances, including ReyesLizarraga’s significant immigration history. See Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Ruiz-Apolonio, 657 F.3d 907, 918 (9th Cir. 2011) (“That the Commission has promulgated a not-yet-adopted amendment that is very likely to be adopted and that would result in reduced Guidelines ranges does not render a district court’s failure to grant a variance substantively unreasonable.”). AFFIRMED. 2 16-10353 & 16-10354

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