United States of America v. Luis Fernando Vargas-Canela, a.k.a. Luis Ferando Vargas-Canela, a.k.a. Luis Fernado…

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NOT FOR PUBLICATION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.
LUIS FERNANDO VARGAS-CANELA,
a.k.a. Luis Ferando Vargas-Canela, a.k.a.
Luis Fernado Vargas-Canela,
Defendant - Appellant.
No. 11-10222
D.C. No. 4:10-cr-01073-FRZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted June 26, 2012**
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Luis Fernando Vargas-Canela appeals from the 36-month sentence imposed
following his guilty-plea conviction for reentry after deportation, in violation of
FILED
JUL 02 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Vargas-Canela first contends that the district court procedurally erred by
failing to calculate properly the advisory Guidelines range. Specifically, he argues
that the court erred in failing to depart on the basis of the relatively minor nature of
his prior conviction. This argument fails because the court correctly calculated the
pre-departure Guidelines range and varied downward in light of the nature of
Vargas-Canela’s prior offense and other mitigating factors.
Vargas-Canela also contends that the district court erred in calculating the
Guidelines range because it should have awarded him a third point for acceptance
of responsibility under U.S.S.G. § 3E1.1(b). This argument is without merit
because Vargas-Canela has not shown that the government’s refusal to move for
the third point was arbitrary or based on an unconstitutional motive. See
United States v. Johnson, 581 F.3d 994, 1001 (9th Cir. 2009).
Vargas-Canela next contends that the district court failed adequately to
explain the sentence. The record belies this contention, as well as his contention
that the court did not appreciate its discretion to vary from the Guidelines on policy
grounds.
Finally, Vargas-Canela contends that his sentence is substantively
unreasonable. In light of the totality of the circumstances and the sentencing

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factors set forth in 18 U.S.C. § 3553(a), the sentence substantially below the
advisory Guidelines range is not substantively unreasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007).
AFFIRMED.

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