United States v. Javier Avila-Herrera

FILED
NOT FOR PUBLICATION JUN 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10554
Plaintiff - Appellee, D.C. No. 2:13-cr-00156-JAD
v.
MEMORANDUM*
JAVIER AVILA-HERRERA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
Javier Avila-Herrera appeals from the district court’s judgment and
challenges the 41-month sentence imposed following his guilty-plea conviction for
being a deported alien found unlawfully in the United States, 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. App. P. 34(a)(2).
Avila-Herrera contends that his sentence is substantively unreasonable
because the district court did not sufficiently account for the mitigating
circumstances related to his prior felony drug conviction. The district court did not
abuse its discretion in imposing Avila-Herrera’s sentence. See Gall v. United
States, 552 U.S. 38, 51 (2007). The court varied downward to account for Avila-
Herrera’s mitigating arguments. The sentence five months below the low end of
the Guidelines range is substantively reasonable in light of the totality of the
circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a). See id.
AFFIRMED.
2 13-10554