                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 22 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-10263

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00248-WBS-10

  v.
                                                 MEMORANDUM*
MARCO ANTHONY GOMEZ, Jr., AKA
Silky,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-10265

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00248-WBS-9

  v.

BENJAMIN SANTOS CASTRO, AKA
Santos Benjamin Castro, AKA Reaper,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-10266

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00248-WBS-11


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  v.

EDWARD FUENTES,

              Defendant - Appellant.


                   Appeal from the United States District Court
                        for the Eastern District of California
                 William B. Shubb, Senior District Judge, Presiding

                    Argued and Submitted on November 4, 2013
                            San Francisco, California

Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.

       The defendants, Marco Gomez, Benjamin Castro, and Edward Fuentes, were

sentenced to incarceration (300 months, 300 months, and 240 months, respectively)

after pleading guilty to conspiracy to manufacture or possess and distribute a

controlled substance under 21 U.S.C. §§ 841(a)(1), 846, and use of a communication

facility for the purpose of drug trafficking under 21 U.S.C. § 843(b). The defendants

now appeal these sentences, alleging various procedural errors and also substantive

unreasonableness. We have jurisdiction under 28 U.S.C. § 1291; United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). We AFFIRM .

       The district court committed no procedural error in sentencing Gomez to 300

months incarceration. The court considered all of the statutorily required factors under

the Guidelines and 18 U.S.C. §3553(a), of which the “lack of youthful guidance” is

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not included. See United States v. Ameline, 409 F.3d 1073, 1093 (9th Cir. 2005) (en

banc) (Wardlaw, J., concurring in part and dissenting in part) (“district courts may

even consider…lack of guidance as a youth” (emphasis added)). Moreover, the district

court did not categorically reject the argument regarding lack of youthful guidance.

It acknowledged that in some cases it may be an appropriate consideration at

sentencing. Further, the court did not err in refusing to grant Gomez the full 3-point

reduction for “Acceptance of Responsibility” under U.S.S.G. §3E1.1(b). The

Guideline provides for an additional one-point reduction “upon motion of the

government,” and here no such motion was made. U.S.S.G. §3E1.1(b). The district

court correctly concluded that the government’s decision to not move for the

additional one-level reduction was not irrational or arbitrary. Fuentes pleaded guilty

at an earlier date than Gomez. The district court also properly considered that the

three-day sentencing hearing placed additional burden on the government. The court

adequately explained its above-Guidelines sentence in an extensive memorandum and

in discussion at sentencing .

      Castro’s sentence is also procedurally and substantively sound. The district

court relied on sufficient evidence including the testimony of two witnesses to find a




                                          3
manager/supervisor aggravator under U.S.S.G. §3B1.1(c).1 The court considered all

of the statutorily required mitigating factors under 18 U.S.C. §3553(a): criminal

history was addressed in depth during the Guidelines calculation, as was Castro’s role

in the offense. While the court did not explicitly mention education and vocational

training, arguments based on these factors were waived because they were not raised

to the district court. Moreover, it ought not be assumed that the court did not consider

this factor simply because it did not “tick [it] off” in its sentence. United States v.

Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc). Lack of youthful guidance and

rehabilitative potential can properly be considered but are not included as §3553(a)

factors that must be considered. Here, the district court considered them, but gave

them little weight.

      Castro’s sentence is also substantively reasonable—it is not the “rare occasion”

that requires vacatur. United States v. Ressam, 679 F.3d 1069, 1087 (9th Cir. 2012)

(en banc). Castro was convicted of trafficking methamphetamine and was a “regiment

commander” in a conspiracy run by a dangerous prison gang, “Nuestra Familia.”

Moreover, he could properly be considered a dangerous person: he was on parole at

      1
       Castro’s reliance on United States v. Harper is misplaced. Harper holds
only that a role-aggravator must be supported by “specific findings” of evidence of
leadership, and not mere increased culpability. United States v. Harper, 33 F.3d
1143, 1150-51 (9th Cir. 1994). Even inferences from evidence are acceptable. Id.
Here there is direct evidence.

                                           4
the time of his arrest, and has been convicted of three batteries and two assaults with

a deadly weapon. Castro’s sentence is also within the range established by the United

States Sentencing Commission. See Carty, 520 F.3d at 994.

      The sentence of Fuentes was also substantively reasonable. Fuentes was a high

level member of the Nuestra Familia prison gang, reporting directly to one of its

“Generals” and tasked with creating a new “regiment” in the community of Merced.

He was convicted of trafficking a large amount of methamphetamine and cocaine.

When he was younger he was convicted of voluntary manslaughter for his

involvement in a Nuestra Familia murder, and after his release from prison he

immediately returned to working with the gang. His sentence was above the guidelines

range, but considering the totality of circumstances, it was not unreasonable.

      AFFIRMED.




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