                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 12 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30364

               Plaintiff - Appellee,             D.C. No. 3:13-cr-05007-RBL

  v.
                                                 MEMORANDUM*
ALBERTO MENDOZA-ORTEGA,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                           Submitted December 5, 2014**

Before:        HAWKINS, McKEOWN, and FRIEDLAND, Circuit Judges.

       Alberto Mendoza-Ortega appeals from the district court’s judgment and

challenges the 108-month sentence imposed following his guilty-plea conviction

for conspiracy to distribute methamphetamine and heroin, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C), and 846. 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.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and we affirm.

      Mendoza-Ortega contends that the district court procedurally erred and

violated his right to due process by considering his nationality as a sentencing

factor. At sentencing, the court expressed skepticism about Mendoza-Ortega’s

claim that he was unaware of the drug quantities possessed by his cousin, stating

“the Hispanics are very close, very suspicious of outsiders.” While this comment

was inappropriate, see U.S.S.G § 5H1.10; Offutt v. United States, 348 U.S. 11, 14

(1954) (“[J]ustice must satisfy the appearance of justice.”), it was harmless. In

calculating the Guidelines range, the court did not hold Mendoza-Ortega

responsible for his cousin’s drugs. Rather, the court adopted the Guidelines range

requested by Mendoza-Ortega and then varied downward significantly. See United

States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010) (error is harmless where there is

no evidence that the alleged error, if changed, would result in a shorter sentence).

Moreover, contrary to Mendoza-Ortega’s contention, 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 the nature of the offense.

See Gall v. United States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




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