United States of America v. Maria Elizabeth Ontiveros

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIA ELIZABETH ONTIVEROS,
Defendant - Appellant.
No. 14-50497
D.C. No. 2:13-cr-00795-SVW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted February 3, 2016**
Pasadena, California
Before: CALLAHAN and N.R. SMITH, Circuit Judges and RAKOFF,*** Senior
District Judge.
FILED
FEB 05 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.

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Maria Elizabeth Ontiveros appeals her 24-month sentence following her
guilty-plea conviction for mail theft in violation of 18 U.S.C. § 1708. We have
jurisdiction under 28 U.S.C. § 1291. Where, as here, a defendant failed to object to
the district court’s alleged sentencing errors, we will grant relief only if the
defendant establishes that plain error affected her substantial rights. See United
States v. Waknine, 543 F.3d 546, 551, 553 (9th Cir. 2008). We review for an abuse
of discretion the substantive reasonableness of a sentence. United States v.
Apodaca, 641 F.3d 1077, 1082 (9th Cir. 2011). We affirm.
The government concedes that the district court violated Federal Rule of
Criminal Procedure 32(i)(4)(A)(iii) by failing to solicit argument from the
government at the sentencing hearing. However, the record reflects that the
government filed a memorandum with the district court explaining its
recommendation before the sentencing hearing, defense counsel reminded the
district court of the government’s position at the hearing, and the district court
stated that it had reviewed the pleadings and arguments. See Waknine, 543 F.3d at
553-54 (holding that the defendant had not established that a Rule 32(i)(4)(A)(iii)
error affected his substantial rights where the government filed a memorandum
with the district court explaining its recommendation before the sentencing
hearing, the government referred the district court to that recommendation shortly
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after sentencing, and the record supported an inference that the district court had
reviewed the pleadings). Ontiveros therefore has not established that the district
court’s failure to solicit argument from the government affected her substantial
rights.
The record does not support Ontiveros’s contention that the district court
plainly erred by failing to address the parties’ arguments in mitigation. The record
reflects that the district court considered the parties’ recommendations and
sufficiently explained the sentence. See Apodaca, 641 F.3d at 1081 (although
sentencing courts normally should explain their reasons for rejecting a party’s
position when it is based on a non-frivolous argument tethered a relevant 18 U.S.C.
§ 3553(a) factor, “[w]e have held that no lengthy explanation is necessary if the
record makes clear that the sentencing judge considered the evidence and
arguments” (citation and internal quotation marks omitted)).
In light of the § 3553(a) sentencing factors and the totality of the
circumstances, including Ontiveros’s criminal history, the district court did not
abuse its discretion by imposing a within-Guidelines sentence. See Apodaca, 641
F.3d at 1082 (explaining standards for determining whether a sentence is
substantively reasonable).
AFFIRMED.
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