                                                                             FILED
                              NOT FOR PUBLICATION                             MAY 19 2011

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



                              FOR THE NINTH CIRCUIT




 UNITED STATES OF AMERICA,                             No. 10-10217

            Plaintiff - Appellee,                      D.C. No. 2:09-CR-364-RLH-
                                                       GWF
  v.

 ZENEL RODRIGUEZ-SANCHEZ,                              MEMORANDUM*

            Defendant - Appellant.


                      Appeal from the United States District Court
                               for the District of Nevada
                     Roger L. Hunt, Chief District Judge, Presiding

                         Argued and Submitted March 18, 2011
                              San Francisco, California


Before: HUG, REAVLEY,** and W. FLETCHER, Circuit Judges.

       Zenel Rodriguez-Sanchez appeals his within-guidelines sentence of 24

months following his guilty-plea conviction for being a deported alien found



       *
        This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as provided by Ninth Cir. Rule 36-3.
       **
         The Honorable Thomas M. Reavley, Senior United States Circuit Judge
for the Fifth Circuit, sitting by designation.
unlawfully in the United States, in violation of 8 U.S.C. § 1326. He challenges

only the substantive reasonableness of the sentence. Reviewing the judgment for

an abuse of discretion, see United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2008) (en banc), we affirm.

      Rodriguez-Sanchez argues that his sentence is substantively unreasonable

because (1) at the time of his sentencing the United States Sentencing Commission

had proposed a guidelines amendment deleting the provision for “recency points”

in calculating criminal history under U.S.S.G. § 4A1.1(e), and (2) the district court

failed to consider his unique circumstances, including the birth of his first child.

      The guidelines amendment upon which Rodriguez-Sanchez relies was not in

effect when the district court imposed the sentence, and we see no abuse of

discretion in the district court’s refusal to apply a proposed-but-not-yet-enacted

amendment. Rodriguez-Sanchez correctly recognized at the sentencing hearing

that the district court was under no obligation to follow the proposed amendment,

and its mere existence did not render the chosen sentence unreasonable. Moreover,

the district court specifically considered that even under the proposed amendment

Rodriguez-Sanchez’s guideline range would have changed from 24 to 30 months to

18 to 24 months, but that considering the 18 U.S.C. § 3553(a) factors a 24-month

sentence was still warranted.


                                           2
       The district court further considered but rejected Rodriguez-Sanchez’s

argument concerning the birth of his child and his family circumstances. The

district judge explained that he believed Rodriguez-Sanchez posed a danger to the

community because of Rodriguez-Sanchez’s criminal history, which included drug

and firearms offenses, and that the 24-month sentence was justified under

§ 3553(a). In short, the district court carefully considered the relevant sentencing

factors and explained its decision. Given the substantial deference due to the

district court’s sentencing determination, we conclude that the sentence was

substantively reasonable. See United States v. Carter, 560 F.3d 1107, 1120 (9th

Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 51–52, 128 S. Ct. 586,

597–98 (2007)). Rodriguez-Sanchez would have us substitute our own judgment

of what is reasonable for that of the district court, which we may not do. See Gall,

552 U.S. at 51, 128 S. Ct. at 597 (“The fact that the appellate court might

reasonably have concluded that a different sentence was appropriate is insufficient

to justify reversal of the district court.”).

       AFFIRMED.




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