United States v. Eric Mendoza ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50442
Plaintiff-Appellee, 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