                                                                            FILED
                            NOT FOR PUBLICATION                             OCT 19 2015

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50024

               Plaintiff - Appellee,             D.C. No. 2:13-cr-00639-ABC

 v.
                                                 MEMORANDUM*
JOSE LUIS GUEVARA, a.k.a. Andres
Fierro Cantu, a.k.a. Jose Andreas Lopez,
a.k.a. Jose Lopez, a.k.a. Jose Andreas
Ruiz,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Audrey B. Collins, District Judge, Presiding

                            Submitted October 14, 2015**

Before:        SILVERMAN, BYBEE, and WATFORD, Circuit Judges.

      Jose Luis Guevara appeals from the district court’s judgment and challenges

the 50-month custodial sentence and three-year term of supervised release imposed


          *
             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).
following his guilty-plea conviction for being an illegal alien found in the United

States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction

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

      First, Guevara contends that the district court erred in determining that

California Health & Safety Code § 11351 is divisible within the meaning of

Descamps v. United States, 133 S. Ct. 2276, 2284 (2013), and therefore subject to

the modified categorical approach. However, Guevara concedes that his argument

is foreclosed by precedent, and we agree. See United States v. Torre-Jimenez, 771

F.3d 1163, 1167 (9th Cir. 2014) (holding that section 11351 is a divisible statute).

      Second, Guevara contends that the district court procedurally erred by

failing to respond to his request for a downward variance in light of his history and

characteristics, by failing to respond to his policy challenge to the illegal reentry

guidelines, and by relying on clearly erroneous facts. We review for plain error,

see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and

find none. The record reflects that the district court listened to Guevara’s

mitigating arguments and recognized its discretion to vary from the Guidelines on

policy grounds. See Rita v. United States, 551 U.S. 338, 358 (2007); United States

v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011). And, contrary to




                                            2                                     14-50024
Guevara’s contention, the district court did not rely on clearly erroneous facts at

sentencing.

      Third, Guevara contends that his sentence is substantively unreasonable in

light of his cultural assimilation, the mitigating factors he presented at sentencing,

and the need to avoid unwarranted sentencing disparities. Contrary to Guevara’s

argument, 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 Guevara’s criminal record, his immigration history, and the need to

avoid unwarranted sentencing disparities. See Gall v. United States, 552 U.S. 38,

51 (2007).

      Finally, Guevara contends that his three-year term of supervised release is

substantively unreasonable. The district court did not abuse its discretion in

imposing the term of supervised release as an added measure of deterrence. See

U.S.S.G. § 5D1.1 cmt. n.5; United States v. Valdavinos-Torres, 704 F.3d 679, 692-

93 (9th Cir. 2012).

      AFFIRMED.




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