                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              APR 20 2017
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 16-50039

              Plaintiff-Appellee,                 D.C. No. 3:15-cr-01094-AJB

 v.
                                                  MEMORANDUM*
FERMIN RUELAS,

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                             Submitted April 11, 2017**

Before:      GOULD, CLIFTON, and HURWITZ, Circuit Judges.

      Fermin Ruelas appeals from the district court’s judgment and challenges the

18-month sentence imposed following his guilty-plea conviction for three counts

of transportation of illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii),



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(v)(II), and (a)(1)(B)(i). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

         In his sentencing summary chart, Ruelas asked the court to grant a four-level

combination of circumstances departure and calculate a corresponding guideline

range of 12-18 months. In his sentencing memorandum, Ruelas repeated that

request, but also stated that a minor role adjustment “appears to be appropriate.”

At sentencing, Ruelas clarified that “I’m asking for, essentially, a minor role

consideration here, whether that falls under the actual minor role departure or part

of the combination of circumstances.” He also explained that he wanted

consideration for his mitigating role in the offense “if not as an official minor role,

departure, then as part of my combination of circumstances.” The court denied a

minor role adjustment, but granted the four-level combination of circumstances

departure requested by Ruelas. This resulted in a guideline range of 12-18 months,

as Ruelas urged, and encompassed Ruelas’s requested sentence of 12 months and

one day. The court elected to impose a high-end sentence of 18 months to avoid

sentencing disparity with other similarly situated defendants in alien transportation

cases.

         Ruelas now contends that the district court erred in denying a minor role

adjustment. He argues that the court should have granted a minor role adjustment

and a combination of circumstances departure and calculated a guideline range of


                                            2
6-12 months. This is not the argument that Ruelas presented to the district court.

Furthermore, any error in the court’s minor role analysis resulted in a benefit to

Ruelas, who persuaded the court to impose a four-level combination of

circumstances departure, rather than a two-level minor role departure, and calculate

the Guidelines range he requested. We thus see no basis for remand.

      Ruelas next contends that his sentence is substantively unreasonable in light

of the mitigating factors. The court did not abuse its discretion in imposing

Ruelas’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The below-

Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a)

sentencing factors and the totality of the circumstances, including Ruelas’s

criminal history. See Gall, 552 U.S. at 51.

      AFFIRMED.




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