USA V. KIRBY REYNOLDS, No. 12-10620 (9th Cir. 2013)

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FILED NOV 04 2013 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 12-10620 D.C. No. 2:11-cr-00206-KJM-1 v. MEMORANDUM* KIRBY ALLEN REYNOLDS, a.k.a. Kirby Alan Reynolds, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding Submitted September 12, 2013** Before: HUG, FARRIS, and LEAVY, Circuit Judges. Kirby Allen Reynolds appeals from the district court s judgment and challenges the 63-month sentence imposed following his guilty-plea conviction for * 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). being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Reynolds contends that the category VI criminal history substantially overrepresented his criminal history and that the district court therefore abused its discretion by failing to depart under U.S.S.G. § 4A1.3(b)(1) or vary downwards. When a district court makes a decision regarding whether to depart under U.S.S.G. § 4A1.3, we do not determine whether the court correctly applied § 4A1.3, but instead determine whether the ultimate sentence was substantively reasonable. See United States v. Ellis, 641 F.3d 411, 421-22 (9th Cir. 2011); see also United States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006). We review the sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The district court did not abuse its discretion in imposing the 63-month sentence. The sentence is not substantively unreasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors, such as the appellant s extensive criminal history, including two prior state convictions for being a felon in possession of a firearm, and the need to provide deterrence and promote respect for the law. See id. AFFIRMED. 2

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