USA V. GUSTAVO MENDOZA-BUSTOS, No. 11-10463 (9th Cir. 2012)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAY 21 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff -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. 11-10463 D.C. No. 2:10-cr-00411-LDG v. MEMORANDUM * GUSTAVO MENDOZA-BUSTOS, Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding Submitted May 15, 2012 ** Before: CANBY, GRABER, and M. SMITH, Circuit Judges. Gustavo Mendoza-Bustos appeals from the 70-month sentence imposed following his guilty-plea conviction for distribution of a controlled substance and possession of a controlled substance with intent to distribute, in violation of 21 * 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). U.S.C. § 841(a)(1), (b)(1)(B)(viii). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Mendoza-Bustos contends that the district court procedurally erred by failing to explain adequately the sentence imposed. The record belies this contention. Mendoza-Bustos next contends that the district court erred by failing to make any findings of fact, or to conduct an evidentiary hearing, regarding his assertion that the government s refusal to move for a sentence reduction under U.S.S.G. § 5K1.1 was based on a desire to punish him for not entering into a plea agreement. The court was not required to conduct an evidentiary hearing, or to make findings of fact, because Mendoza-Bustos did not make a substantial threshold showing that the government had unconstitutional motives or acted arbitrarily. See Wade v. United States, 504 U.S. 181, 185-86 (1992); see also United States v. Murphy, 65 F.3d 758, 764 (9th Cir. 1995) ( Maintaining the effectiveness of the plea negotiation process is a legitimate governmental interest. ). Finally, Mendoza-Bustos contends that his sentence is substantively unreasonable. In light of the totality of the circumstances and the 18 U.S.C. 2 11-10463 § 3553(a) sentencing factors, Mendoza-Bustos s within-Guidelines sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007). AFFIRMED. 3 11-10463
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