USA V. ERIC MENDOZA, No. 16-50442 (9th Cir. 2017)

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FILED NOT FOR PUBLICATION OCT 31 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, U.S. COURT OF APPEALS No. 16-50442 D.C. No. 3:16-cr-00902-DMS v. MEMORANDUM* ERIC MENDOZA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted October 23, 2017** Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges. Eric Mendoza appeals from the district court’s judgment and challenges the 80-month sentence imposed following his guilty-plea conviction for importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. 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 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). Mendoza contends that the district court procedurally erred by failing to appreciate or acknowledge its discretion to vary from the career offender guideline based on a policy disagreement under Kimbrough v. United States, 552 U.S. 85 (2007). We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude there was none. The record reflects that the district court considered the parties’ arguments, noted its discretion to vary from the Guidelines, and imposed a substantially below-Guidelines sentence based on the 18 U.S.C. § 3553(a) factors. Under such circumstances, the district court did not procedurally err by failing to appreciate its discretion to vary from the Guidelines under Kimbrough, nor did it fail to explain adequately its exercise of discretion. See United States v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011). AFFIRMED. 2 16-50442

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