United States of America v. Gustavo Mendoza-Bustos

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NOT FOR PUBLICATION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.
GUSTAVO MENDOZA-BUSTOS,
Defendant - Appellant.
No. 11-10463
D.C. No. 2:10-cr-00411-LDG
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted May 15, 2012**
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Gustavo Mendoza-Bustos appeals from the 70-month sentence imposed
following his guilty-plea conviction for distribution of a controlled substance and
possession of a controlled substance with intent to distribute, in violation of 21
FILED
MAY 21 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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U.S.C. § 841(a)(1), (b)(1)(B)(viii). We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
Mendoza-Bustos contends that the district court procedurally erred by failing
to explain adequately the sentence imposed. The record belies this contention.
Mendoza-Bustos next contends that the district court erred by failing to
make any findings of fact, or to conduct an evidentiary hearing, regarding his
assertion that the government’s refusal to move for a sentence reduction under
U.S.S.G. § 5K1.1 was based on a desire to punish him for not entering into a plea
agreement. The court was not required to conduct an evidentiary hearing, or to
make findings of fact, because Mendoza-Bustos did not make a “substantial
threshold showing” that the government had unconstitutional motives or acted
arbitrarily. See Wade v. United States, 504 U.S. 181, 185-86 (1992); see also
United States v. Murphy, 65 F.3d 758, 764 (9th Cir. 1995) (“Maintaining the
effectiveness of the plea negotiation process is a legitimate governmental
interest.”).
Finally, Mendoza-Bustos contends that his sentence is substantively
unreasonable. In light of the totality of the circumstances and the 18 U.S.C.

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§ 3553(a) sentencing factors, Mendoza-Bustos’s within-Guidelines sentence is
substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.

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