                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 04 2011

                                                                        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. 09-10443

              Plaintiff - Appellee,              D.C. No. 5:08-cr-00607-RMW-1

  v.
                                                 MEMORANDUM *
AHN THAT TON, AKA Timmy,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Ronald M. Whyte, District Judge, Presiding

                    Argued and Submitted September 10, 2010
                            San Francisco, California

Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.

       Appellant-Defendant Anh That Ton (Ton) appeals the district court’s

imposition of a 48-month and one day sentence. Ton asserts that the district court

erred when it imposed an additional criminal history point pursuant to U.S.S.G.

§ 4A1.1(e) after concluding that Ton committed part of the instant offense less than

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
two years after release from imprisonment. Ton also argues that his sentence is

substantively unreasonable.

      U.S.S.G. § 4A1.1(e) provides for the addition of one criminal history point

to the criminal history category of an offender who “committed the instant offense

less than two years after release from imprisonment . . .” U.S.S.G. § 4A1.1(e).

Ton argues that the district court erred when it imposed an additional criminal

history point because the government stipulated that the conspiracy ended in

February, 2006, prior to his release from prison. Because the parties’ stipulations

do not bind a district court at sentencing, see United States v. Chaney, 581 F.3d

1123, 1124-25, 1127 (9th Cir. 2009), Ton’s argument lacks merit.

      In reviewing a sentence for substantive reasonableness, we reverse only “if

upon reviewing the record, we have a definite and firm conviction that the district

court committed a clear error of judgment in the conclusion it reached upon

weighing the relevant factors.” United States v. Edwards, 595 F.3d 1004, 1015

(9th Cir. 2010) (citation omitted). The district court decided that a downward

departure was warranted after considering the mitigating and aggravating

circumstances in Ton’s case. That consideration was exactly the type the district

court was required to make under 18 U.S.C. § 3553. See 18 U.S.C. § 3553(a).

Because the sentence imposed “rested on a reasoned basis and relied upon factors


                                          2
within [the court’s] discretion,” the sentence imposed was not substantively

unreasonable. Edwards, 595 F.3d at 1018; see also United States v. Bendtzen, 542

F.3d 722, 729 (9th Cir. 2008) (concluding that a “below-Guidelines Sentence,

supported by the district court’s specific reasoning, is reasonable”) (citation

omitted).

      AFFIRMED.




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