                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 03 2012

                                                                         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. 11-50060

              Plaintiff - Appellee,               D.C. No. 3:10-CR-07019-BEN

  v.                                              MEMORANDUM *

RUBEN ANTONIO VILLATORO-
MEDRANO, etc.,

             Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                     Argued and Submitted November 9, 2011
                              Pasadena, California

Before: SCHROEDER and REINHARDT, Circuit Judges, and HUDSON, District
Judge.**

       Ruben Villatoro-Medrano appeals the 18-month sentence he received for

violating the terms of his supervised release. He argues that the district court


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Henry E. Hudson, United States District Judge for the
Eastern District of Virginia, sitting by designation.
committed procedural and substantive error by selecting a sentence based in part

on the possibility that the sentence for his underlying offense might be reversed on

appeal. We review the district court’s sentencing decision for abuse of discretion.

United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010).

      First, because the district court anchored its sentence in the 18 U.S.C. §

3583(e) framework, Petitioner’s claim of procedural error is without merit. See

United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007). Indeed, the court

below expressly acknowledged the purpose of its sentence as sanctioning

Petitioner’s breach of the court’s trust, deterring future violations, and facilitating

rehabilitation. Regardless, the error, if any, was caused when Petitioner’s counsel

below asked the district judge to consider the underlying 72-month sentence in

imposing the sentence now at issue. Here, where the guideline range was 21 to 24

months, an 18 month sentence did not constitute a “miscarriage of justice,” nor is

reversal “necessary to preserve the integrity of the judicial process.” United States

v. Crawford, 239 F.3d 1086, 1092 (9th Cir. 2001) (quoting United States v.

Cabrera, 201 F.3d 1243, 1249 (9th Cir. 2000)).

      Petitioner’s second argument is equally unavailing. To evaluate substantive

reasonableness, this Court must “consider the totality of the circumstances.”

United States v. Espinoza-Baza, 647 F.3d 1182, 1195 (9th Cir. 2011). In support


                                            2
of his claim, Petitioner points to the district court’s speculation that a 12-month

term of imprisonment might be sufficient if the 72-month sentence imposed for

Petitioner’s underlying offense were upheld on appeal. As Petitioner concedes,

however, the district court also found a term of 24 months to be reasonable “in

isolation,” even if it would yield a period of incarceration “greater than necessary”

when coupled with Petitioner’s underlying sentence. Because that 72-month

sentence has now been vacated, United States v. Villatoro-Medrano (No. 10-

50543), we decline to vacate the instant sentence and invite an opportunity for the

district court in this case to impose an even higher sentence on remand.

      AFFIRMED.




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