United States v. Jesus Gonzalez-Mendoza , 376 F. App'x 764 ( 2010 )

FILED
NOT FOR PUBLICATION APR 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50290
Plaintiff - Appellee, D.C. No. 3:08-cr-02523-WQH
v.
MEMORANDUM *
JESUS GONZALEZ-MENDOZA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Jesus Gonzalez-Mendoza appeals from the 60-month sentence imposed
following his guilty-plea conviction for being a deported alien found in the United
States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 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).
Gonzalez-Mendoza contends that the district court procedurally erred by
failing to adequately explain the sentence and by not responding to his non-
frivolous arguments in mitigation. The record reflects that the district court
carefully considered the 18 U.S.C. § 3553(a) sentencing factors, including
Gonzalez-Mendoza’s arguments in mitigation, before concluding that the
circumstances were insufficient to warrant a sentence below the one imposed. The
district court did not procedurally err in fashioning the sentence. See United States
v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
Gonzales-Mendoza also contends that the sentence imposed is substantively
unreasonable because the prior aggravated felony conviction used to impose a 16-
level enhancement to his base offense level was remote in time, unrelated to the
instant offense, and already accounted for in his criminal history score. This
argument lacks merit. Cf. United States v. Amezcua-Vasquez, 567 F.3d 1050,
1055-56 (9th Cir. 2009); see also United States v. Garcia-Cardenas, 555 F.3d
1049, 1050 (9th Cir. 2009) (per curiam). The sentence is substantively reasonable
under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-
52 (2007).
AFFIRMED.
2 09-50290