United States v. Juan-Manuel Gutierrez-Pineda

FILED
NOT FOR PUBLICATION JAN 27 2012
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. 11-10126
Plaintiff - Appellee, D.C. No. 4:10-cr-00879-DCB
v.
MEMORANDUM *
JUAN-MANUEL GUTIERREZ-PINEDA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted January 17, 2012 **
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
Juan-Manuel Gutierrez-Pineda appeals from the 51-month sentence imposed
following his conviction for reentry after deportation, in violation of 8 U.S.C.
§ 1326. 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 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. Appellant. P. 34(a)(2).
Gutierrez-Pineda contends that the district court procedurally erred by
failing to appreciate its discretion, under Kimbrough v. United States, 552 U.S. 85
(2007), to deviate from the advisory sentencing Guidelines based on policy
differences with the Guidelines, and by failing to adequately address
Gutierrez-Pineda’s objections to the sixteen-level sentencing enhancement
pursuant to U.S.S.G. § 2L1.2(b)(1)(A). These contentions are belied by the record.
Gutierrez-Pineda also contends that the sentence is substantively
unreasonable under United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir.
2009), because the sentence does not adequately account for the age of his prior
convictions, his individual circumstances, and an amendment to the Guidelines that
had not yet been adopted. In light of the totality of the circumstances and the
section 3553(a) sentencing factors, the sentence is substantively reasonable. See
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Ruiz-Apolonio, 657
F.3d 907, 917-18 (district court not required to consider Guidelines amendment
that has been promulgated but not yet adopted).
AFFIRMED.
2 11-10126