United States of America v. Yefry Montenegro

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable John A. Jarvey, United States District Judge for the**
Southern District of Iowa, sitting by designation.
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NOT FOR PUBLICATION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.
YEFRY MONTENEGRO,
Defendant - Appellant.
No. 12-10567
D.C. No. 2:12-cr-01354-SRB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
John A. Jarvey, District Judge, Presiding**
Submitted September 24, 2013***
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Yefry Montenegro appeals from the district court’s judgment and challenges
the 57-month sentence imposed following his guilty-plea conviction for reentry of
FILED
OCT 02 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-10567 2
a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
Montenegro contends that the district court procedurally erred by failing to
address his nonfrivolous arguments for a departure or variance and by failing to
explain the sentence imposed. We review for plain error, see United States v.
Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The
record reflects that the district court considered all of Montenegro’s arguments, and
explained the sentence imposed. Moreover, the record belies Montenegro’s
assertion that the court improperly substituted the fast-track Guidelines range for
the correctly calculated range.
Montenegro also contends that his sentence is substantively unreasonable
because it fails to account for his mitigating circumstances. The district court did
not abuse its discretion in imposing Montenegro’s sentence. See Gall v. United
States, 552 U.S. 38, 51 (2007). The sentence 13 months below the low end of the
Guidelines range is substantively reasonable in light of the 18 U.S.C. § 3553(a)
sentencing factors and the totality of the circumstances, including Montenegro’s
criminal and immigration history and the need for deterrence. See id.
AFFIRMED.

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