United States v. Bay Mendivil-Silva

FILED
NOT FOR PUBLICATION DEC 27 2011
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. 11-10098
Plaintiff - Appellee, D.C. No. 4:10-cr-00795-RCC
v.
MEMORANDUM *
BAY IGNACIO MENDIVIL-SILVA,
a.k.a. Bay Ignacio Mendevil-Silva,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Bay Ignacio Mendivil-Silva appeals from the 78-month sentence imposed
following his guilty-plea conviction for importation of cocaine, in violation of
21 U.S.C. §§ 952(a), 960(a)(1) and 960(b)(1)(A)(ii), and possession with intent to
*
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).
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii)(II). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Mendivil-Silva contends that remand is required because the district court
did not recognize its discretion to vary from the advisory sentencing Guidelines
range pursuant to Kimbrough v. United States, 552 U.S. 85 (2007). The record
belies that contention. The district court understood that had discretion to vary but
concluded that a within-Guidelines sentence was appropriate for Mendivil-Silva.
To the extent that Mendivil-Silva also contends that his sentence was
substantively unreasonable, the contention fails. In light of the totality of the
circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a), the 78-
month sentence is substantively reasonable. See Gall v. United States, 552 U.S.
38, 51 (2007).
AFFIRMED.
2 11-10098