                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            OCT 05 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 13-10616

              Plaintiff - Appellee,              D.C. No. 4:13-cr-01116-RCC-
                                                 CRP-1
 v.

NICOLAS MUNOZ-CANDELARIO,                        MEMORANDUM*
AKA Nicolas Munoz-Feliz,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Raner C. Collins, Chief District Judge, Presiding

                          Submitted September 16, 2015**
                             San Francisco, California

Before: W. FLETCHER, BERZON, and BEA, Circuit Judges.

      Nicolas Munoz-Candelario appeals from the 63-month sentence imposed

following his guilty-plea conviction for conspiracy to possess with intent to sell

between 50 and 100 kg of marijuana under 21 U.S.C. §§ 846, 841(a)(1),

        *
             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).
841(b)(1)(c), possession with intent to sell between 50 and 100 kg of marijuana

under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c), and illegal reentry under 8 U.S.C. §

1326(a), with a sentencing enhancement pursuant to 8 U.S.C. § 1326(b)(2).

      1. The district court did not improperly rely on 2001 and 2004 convictions

listed in the presentence report (“PSR”) as part of Munoz-Candelario’s criminal

history. Munoz-Candelario never objected to the contents of the PSR. “[T]he

district court may rely on undisputed statements in the PSR at sentencing.” United

States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc); see also Fed. R.

Crim. P. 32(i)(3)(A) (providing that a sentencing court “may accept any undisputed

portion of the presentence report as a finding of fact”). The district court therefore

properly relied on the criminal history set out in the PSR.

      2. The district court properly grouped the illegal reentry conviction

separately from the drug convictions in calculating the offense level. “The federal

sentencing guidelines require ‘that [a]ll counts involving substantially the same

harm . . . be grouped together into a single Group for purposes of calculating the

offense level pertaining to a multiple-count conviction.” United States v.

Espinoza-Baza, 647 F.3d 1182, 1193 (9th Cir. 2011) (quoting United States v.

Nanthanseng, 221 F.3d 1082, 1083 (9th Cir. 2000) (some internal quotation marks

omitted)). “For offenses in which there are no identifiable victims (e.g., drug or


                                           2
immigration offenses, where society at large is the victim), the ‘victim’ for

purposes of subsections (a) and (b) is the societal interest that is harmed. In such

cases, the counts are grouped together when the societal interests that are harmed

are closely related.” U.S.S.G. § 3D1.2 cmt. n.2.

      Here, the societal interests are distinct. “The societal interest directly

threatened by violations of drug laws such as 21 U.S.C. § 841(a)(1) . . . is the

interest in ‘drug abuse prevention.’” Nanthanseng, 221 F.3d at 1084 (quoting

United States v. Barron-Rivera, 922 F.2d 549, 555 (9th Cir. 1991)). By contrast,

we have referred to the “strong societal interest in controlling immigration and in

effectively policing our borders” advanced by 8 U.S.C. § 1326. United States v.

Cupa-Guillen, 34 F.3d 860, 863 (9th Cir. 1994). Because the interests harmed by

the drug and immigration offenses here involved are distinct, the district court

properly grouped Munoz-Candelario’s drug convictions separately from his illegal

reentry conviction.

      3. We decline to remand for resentencing in light of a change to the

Sentencing Guidelines. See U.S.S.G., Supp. To Appendix C, Amendment 782

(November 1, 2014).1 Remand is inappropriate because, among other reasons, the



      1
     This change applies retroactively. See U.S.S.G., Supp. To Appendix C,
Amendment 788 (November 1, 2014).
                                           3
amendment to the Guidelines affects only Munoz-Candelario’s marijuana

convictions; the higher offense level for his reentry conviction, which determines

his total offense level, U.S.S.G. § 3D1.4, remained unchanged. Because the

sentencing range for Munoz-Candelario would be the same regardless whether the

sentencing court applied the amended guideline, “he is ineligible for relief under §

3582(c)(2).” United States v. Waters, 648 F.3d 1114, 1117 (9th Cir. 2011).

      4. The district court’s sentencing decision was not “procedurally

inadequate.” A district court is not required explicitly to address every argument

for mitigation raised by a defendant. See United States v. Amezcua-Vasquez, 567

F.3d 1050, 1054 (9th Cir. 2009). The record indicates that the district court in this

case listened to and considered Munoz-Candelario’s arguments for mitigation, as

well as the factors enumerated in 18 U.S.C. § 3553(a). No more was required. See

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

      5. Finally, Munoz-Candelario contends that his below-Guidelines sentence

was substantively unreasonable. In departing downward from the Guidelines

range, the district court took into account both Munoz-Candelario’s significant

criminal history and the considerable amount of time that had elapsed since his last

conviction. In light of the “totality of the circumstances,” the court’s decision to

impose a sentence seven months lower than the bottom of the Guidelines range


                                           4
was not substantively unreasonable. United States v. Carty, 520 F.3d 984, 993 (9th

Cir. 2008) (en banc).

      AFFIRMED.




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