                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 15 2013

                                                                        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. 11-50432

              Plaintiff - Appellee,              D.C. No. 3:11-CR-01280-LAB-1

  v.
                                                 MEMORANDUM *
FELIPE JASSO–RIOS,

              Defendant - Appellant.



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

                           Submitted February 13, 2013 **
                               Pasadena, California

Before: KOZINSKI, Chief Judge, SILVERMAN, Circuit Judge, and RAKOFF,
Senior District Judge.***




        *
             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).
        ***
            The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
         Felipe Jasso–Rios contends that the district court committed plain procedural

error by failing to appreciate its discretion to vary downward from the Guidelines

on policy grounds under Kimbrough v. United States, 552 U.S. 85, 109–110

(2007), and by improperly considering the cost of prosecution at sentencing. The

record belies these contentions. The district court considered Jasso–Rios’s policy

challenge, and did not plainly err in rejecting it as beside the point in light of

Jasso–Rios’s long record of immigration offenses. See United States v. Ayala-

Nicanor, 659 F.3d 744, 752 (9th Cir. 2011). In addition, the district court’s

discussion of the cost of prosecution was, in context, simply an explanation of the

enhanced need for deterrence and public protection in this case.

         Jasso–Rios also contends that his within–Guidelines sentence is

substantively unreasonable. In light of the sentencing factors under 18 U.S.C.

§ 3553(a) and the totality of the circumstances, including Jasso–Rios’s two prior

convictions and more than forty encounters with immigration officials, the

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, 993 (9th Cir. 2008) (en

banc).

         AFFIRMED.
