                                                                           FILED
                             NOT FOR PUBLICATION                            APR 21 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT




UNITED STATES OF AMERICA,                         No. 09-30101

               Plaintiff - Appellee,              D.C. No. 1:08-CR-00009-EJL

  v.
                                                  MEMORANDUM *
DAVID PANTHER HERRERA,

               Defendant - Appellant.



                     Appeal from the United States District Court
                               for the District of Idaho
                      Edward J. Lodge, District Judge, Presiding

                               Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       David Panther Herrera appeals from his guilty-plea conviction and

120-month sentence imposed for unlawful possession of a firearm, in violation of



          *
             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).
18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

      Herrera contends that his guilty plea is invalid because the district court did

not adequately confirm the factual basis for his plea. The district court did not err

pursuant to Fed. R. Crim. P. 11(b)(3) because both Herrera and his counsel agreed

with the government’s factual summary. See United States v. Rivera Ramirez, 715

F.2d 453, 458 (9th Cir. 1983); see also United States v. Covian-Sandoval, 462 F.3d

1090, 1093 (9th Cir. 2006).

      Herrera also contends that the district court violated his constitutional rights

by enhancing his sentence pursuant to U.S.S.G. § 2K1.2(b)(4)(B) and (b)(6) based

on judge-found facts. The district court did not err because Herrera was not

sentenced above the statutory maximum. See United States v. Raygosa-Esparza,

566 F.3d 852, 855 (9th Cir. 2009). Herrera’s alternate contention that the district

court erred by not applying the clear and convincing evidence standard also lacks

merit. See United States v. Grejada, 581 F.3d 1186, 1189 (9th Cir. 2009) (stating

that an uncontroverted pre-sentence report satisfies this standard).

      Herrera asserts that his sentence is substantively unreasonable because,

among other things, the district court did not give adequate weight to his mitigating

factors. Considering the totality of the circumstances, the below-guidelines


                                           2                                    09-30101
sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51

(2007); see also United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en

banc).

         We grant Herrera’s motion to take judicial notice of specified state court

documents, see Fed. R. Evid. 201, and deny Herrera’s motion to submit

supplemental briefing on an issue that was not raised before the district court or in

his opening brief. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992).

         AFFIRMED.




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