USA v. Felix Lemus-Rodriguez, No. 09-10505 (9th Cir. 2011)

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FILED FEB 23 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-10505 D.C. No. 4:09-cr-01358-DCB v. FELIX SANTIAGO LEMUSRODRIGUEZ, MEMORANDUM * Defendant - Appellant. Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding Submitted February 15, 2011 ** Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges. Felix Santiago Lemus-Rodriguez appeals from the 41-month sentence imposed following his guilty-plea conviction for re-entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and * 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 affirm. Lemus-Rodriguez contends that the district court committed procedural error by: (1) relying on a clearly erroneous fact; (2) failing to explain adequately its reasons for rejecting his arguments; and (3) failing to explain adequately the reasons for and the extent of variance from the guidelines range. Lemus-Rodriguez has not demonstrated that the alleged factual error by the district court affected his substantial rights. See United States v. Dallman, 533 F.3d 755, 761-62 (9th Cir. 2008). Lemus-Rodriguez s other contentions of procedural error are belied by the record. It is clear the district court considered Lemus-Rodriguez s sentencing arguments. See United States v. Perez-Perez, 512 F.3d 514, 516 (9th Cir. 2008). Finally, in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors, the sentence is not substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51 (2007). AFFIRMED. 2 09-10505

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