United States v. Manuel Magana

FILED
NOT FOR PUBLICATION JAN 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50131
Plaintiff - Appellee, D.C. No. 2:09-cr-00939-GW
v.
MEMORANDUM*
MANUEL MAGANA, a.k.a. Porks,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
Manuel Magana appeals from the district court’s judgment and challenges
the 144-month sentence imposed following his guilty-plea conviction for
conspiracy to distribute cocaine base in the form of crack cocaine,
methamphetamine, cocaine, and heroin, in violation of 21 U.S.C. § 846. We have
*
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).
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Magana contends that the district court erred by not realistically considering
his individual situation or the underlying offense conduct and by observing that his
offense would potentially carry a life sentence in state court. We review for plain
error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010), and find none. The record belies Magana’s contention that the district court
failed to consider his circumstances or the offense conduct. See United States v.
Treadwell, 593 F.3d 990, 1013 (9th Cir. 2010) (“The district court need not tick off
each of the § 3553(a) factors to show that it has considered them.” (citation
omitted)). Moreover, any alleged error in the district court’s observation regarding
the potential state sentence was harmless. See United States v. Leasure, 319 F.3d
1092, 1098 (9th Cir. 2003) (“A sentencing error is harmless if the district court
‘would have imposed the same sentence absent the errors.’” (citation omitted)).
Magana also contends that his sentence is substantively unreasonable. The
district court did not abuse its discretion in imposing Magana’s sentence. See Gall
v. United States, 552 U.S. 38, 51 (2007). The 144-month below-Guidelines
sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and
the totality of the circumstances, including the seriousness of Magana’s current
offense and the extensiveness and seriousness of his prior criminal history. See id.;
2 12-50131
United States v. Dewey, 599 F.3d 1010, 1017 (9th Cir. 2010).
Finally, Magana waived his challenge to the career-offender designation.
See United States v. Gomez-Mendez, 486 F.3d 599, 606 n.10 (9th Cir. 2007) (“[A]n
issue raised for the first time in a letter of supplemental authorities under Fed.
R.App. 28(j) is ordinarily deemed waived.”).
AFFIRMED.
3 12-50131