United States v. Martin Gasca Rojas ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10434
Plaintiff-Appellee, D.C. No. 2:17-cr-00077-JAM-1
v.
MEMORANDUM*
MARTIN GASCA ROJAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Martin Gasca Rojas appeals from the district court’s judgment and
challenges the 151-month sentence imposed following his guilty-plea conviction
for three counts of distribution of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1). 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).
Gasca Rojas contends that the district court procedurally erred by failing to
recognize its discretion to vary below the Sentencing Guidelines on policy
grounds, and by failing to explain its rejection of his request for a downward
variance. Contrary to the government’s waiver argument, we review both claims
for plain error, see United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en
banc), and conclude that there is none. The record reflects the district court
recognized its discretion but declined to exercise it. See United States v.
Henderson, 649 F.3d 955, 964 (9th Cir. 2011). Moreover, the district court
sufficiently explained the within-Guidelines sentence. See Rita v. United States,
551 U.S. 338, 358-59 (2007).
AFFIRMED.
2 18-10434