                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 21 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 18-50074

                Plaintiff-Appellee,             D.C. No. 3:17-cr-02935-LAB

 v.
                                                MEMORANDUM*
RAUL GERARDO GUERRERO,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                          Submitted December 17, 2018**

Before:      WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

      Raul Gerardo Guerrero appeals from the district court’s judgment and

challenges the 78-month sentence imposed following his guilty-plea conviction for

importation of methamphetamine, in violation of 21 U.S.C. §§ 952, 960. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.



      *
             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).
      Guerrero contends that the district court violated Federal Rule of Criminal

Procedure 32, based the sentence on unconstitutional considerations and clearly

erroneous facts, and failed to consider as a mitigating factor the abuse he suffered

as a child. Because Guerrero did not raise these claims in the district court, we

review for plain error. See United States v. Christensen, 732 F.3d 1094, 1101 (9th

Cir. 2013). The district court did not plainly err. Contrary to Guerrero’s claim, the

court did not rely on undisclosed facts that were not in the record; rather, it

properly considered all of the circumstances of the case to assess Guerrero’s

credibility. See Fed. R. Crim. P. 32(i)(1)(B); Gall v. United States, 552 U.S. 38, 51

(2007) (sentencing judge makes credibility determinations). Moreover, the court

did not punish Guerrero for his failure to disclose to the arresting officer or the

probation officer that he had been threatened. Instead, the court expressed some

skepticism about Guerrero’s claim, but nevertheless varied downward 30 months

in light of the alleged threat and other mitigating circumstances.

      Nor did the court make any clearly erroneous factual findings. The court’s

findings that the instant offense was Guerrero’s third drug smuggling offense, and

that he might have engaged in additional smuggling trips absent intervention by

law enforcement, were supported by the record. See United States v. Graf, 610

F.3d 1148, 1157 (9th Cir. 2010). Lastly, the record demonstrates that the district

court considered all of Guerrero’s mitigating arguments.


                                           2                                      18-50074
      Guerrero also contends that the sentence is substantively unreasonable. The

district court did not abuse its discretion. See Gall, 552 U.S. at 51. The below-

Guidelines, 78-month sentence is substantively reasonable in light of the 18 U.S.C.

§ 3553(a) sentencing factors and the totality of the circumstances. See Gall, 552

U.S. at 51.

      AFFIRMED.




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