USA V. ADAN USCANGA-GONZALEZ, No. 14-50034 (9th Cir. 2015)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED APR 30 2015 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, v. U.S. COURT OF APPEALS No. 14-50034 D.C. No. 3:13-cr-03690-DMS MEMORANDUM* ADAN USCANGA-GONZALEZ, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted April 22, 2015** Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges. Adan Uscanga-Gonzalez appeals from the district court’s judgment and challenges the 27-month sentence imposed following his guilty-plea conviction for being a removed alien found in the United States, in violation of 8 U.S.C. § 1326. 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 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). Uscanga-Gonzalez contends that the district court procedurally erred by failing to explain adequately the upward variance and failing to consider or address his sentencing arguments. We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The record reflects that the district court considered Uscanga-Gonzalez’s arguments and sufficiently explained the reasons for imposing the above-Guidelines sentence. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Contrary to Uscanga-Gonzalez’s contention, the court did not err by using his previous sentence for the same offense as a benchmark. See United States v. Higuera-Llamos, 574 F.3d 1206, 1211-12 (9th Cir. 2009). Uscanga-Gonzalez next contends that the sentence is substantively unreasonable in light of the mitigating factors and the alleged procedural errors, and because the district court relied upon disputed facts underlying a previous state conviction. The district court did not abuse its discretion in imposing Uscanga-Gonzalez’s sentence. See Gall United States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including Uscanga-Gonzalez’s immigration history. See Gall, 552 U.S. at 51; see also 2 14-50034 United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (“The weight to be given the various factors in a particular case is for the discretion of the district court.”). Moreover, the court’s reliance on the disputed facts does not render the sentence unreasonable because Uscanga-Gonzalez has not shown that the disputed facts were false or unreliable. See United States v. Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir. 2009). AFFIRMED. 3 14-50034
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