United States v. Millan-Castro

MEMORANDUM ^**

Sergio Millan-Castro appeals the 40-month sentence imposed following his guilty plea to illegal reentry after deportation, in violation of 8 U.S.C. § 1326, and possession of a firearm by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a). He contends that his below-Guidelines-range sentence was unreasonable and contrary to 18 U.S.C. § 3553(a) because the district court gave undue emphasis to the advisory Sentencing Guidelines. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review the reasonableness of a sentence for an abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc), cert. denied, — U.S. -, 128 S.Ct. 2491, 171 L.Ed.2d 780 (2008). “All sentencing proceedings are to begin by determining the applicable Guidelines range.” Id. at 991. “The parties must be given a chance to argue for a sentence they believe is appropriate.” Id. “The district court should then consider the § 3553(a) factors to decide if they support the sentence suggested by the parties.” Id. The Guidelines factor should not “be given more or less weight than any other.” Id.

The district court followed this procedure. The government asked for a within-range sentence of 64 months, and MillanCastro asked for a below-range sentence on the basis that his criminal history should be considered as category II rather than III, his prior conviction had a large effect on his Guidelines range, and he had led a productive life since his release from prison. The district court considered these arguments and imposed a sentence below the range for criminal history category II. The record thus shows that the district court properly considered the § 3558(a) factors and did not give undue weight to the Guidelines range of 57 to 71 months. See id. We conclude that there was no procedural error and that the sentence was substantively reasonable. See id. at 993.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.