                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 18 2013

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



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10403

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00114-LRH-1

  v.
                                                 MEMORANDUM*
JAMES GARNER,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                      Argued and Submitted October 11, 2013
                            San Francisco, California

Before: WALLACE, M. SMITH, and IKUTA, Circuit Judges.

       Garner appeals from his sentence for mail fraud, in violation of 18 U.S.C.

§ 1341, on the grounds that the sentence was procedurally flawed and substantively

unreasonable. We have jurisdiction under 28 U.S.C. § 1291.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Even assuming the district court made the factual errors identified by

Garner, it is clear that no prejudice resulted from such errors. The district court

focused primarily on the evidence of Garner’s recidivism, and imposed a sentence

it deemed reasonable to deter future offenses. Cf. United States v. Cruz-Gramajo,

570 F.3d 1162, 1167 (9th Cir. 2009). Because the sentence was not based on false

or unreliable information, no due process violation occurred. See United States v.

Vanderwerfhorst, 576 F.3d 929, 935–36 (9th Cir. 2009). The district court

reasonably concluded that the government had carried its burden of proving

sentencing facts by a preponderance of the evidence, and its statements that Garner

failed to rebut the evidence presented by the government did not shift the burden of

proof to Garner.

      Finally, the district court properly weighed the factors set out in 18 U.S.C.

§ 3553(a), and did not significantly overvalue the impact of Garner’s immediate

recidivism. The sentence imposed was therefore not substantively unreasonable.

See United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (en banc).

      AFFIRMED.




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