United States of America v. Jose Luis Rivera-Carbajal

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE LUIS RIVERA-CARBAJAL,
Defendant - Appellant.
No. 12-10610
D.C. No. 2:11-cr-00427-HDM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted June 18, 2013**
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
Jose Luis Rivera-Carbajal appeals from the district court’s judgment and
challenges the 51-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.
FILED
JUN 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

12-10610 2
Rivera-Carbajal argues that the district court erred procedurally by failing to
consider his arguments in mitigation and by failing to explain adequately its
reasons for declining to vary from the advisory Sentencing Guidelines range in
light of those arguments. We review for plain error, see United States v. Sylvester
Norman Knows His Gun, III, 438 F.3d 913, 918 (9th Cir. 2006), and find none.
The record reflects that the court considered the 18 U.S.C. § 3553(a) sentencing
factors, including Rivera-Carbajal’s arguments in mitigation, and explained that a
variance from the advisory Sentencing Guidelines range was unwarranted in light
of Rivera-Carbajal’s history, particularly his history of domestic violence. No
more was required. See Rita v. United States, 551 U.S. 338, 358-59 (2007).
Rivera-Carbajal further contends that his sentence is substantively
unreasonable. We review for abuse of discretion. See Gall v. United States, 552
U.S. 38, 51 (2007). The 51-month sentence at the low end of the undisputed
advisory Sentencing Guidelines range is substantively reasonable in light of the
totality of the circumstances and the section 3553(a) factors. See id.
AFFIRMED.

-- 2 of 2 --