                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 31 2011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. 10-50039

                Plaintiff - Appellee,             D.C. No. 2:09-cr-00457-JFW-1

    v.
                                                  MEMORANDUM *
ALVAN CHIEMEZIE ASIERU, AKA
Alvan Asieru,

                Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Central District of California
                      John F. Walter, District Judge, Presiding

                                Submitted May 2, 2011 **
                                  Pasadena, California

Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.

         Alvan Asieru appeals his 97-month sentence for his conviction for one count

of mail fraud in violation of 18 U.S.C. § 1341. We affirm.




          *
             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).
      Asieru’s argument that the district court committed procedural and

substantive error by failing to fully consider the alleged structural problems of

Sentencing Guidelines section 2B1.1 is not supported by the record. Our precedent

dictates that to avoid procedural error when a Kimbrough argument is raised, a

district court need only “appreciate its Kimbrough discretion to vary from the . . .

Guidelines based on a categorical policy disagreement with them.” United States v.

Henderson, — F.3d —, 2011 WL 1613411, at *8 (9th Cir. April 29, 2011)

(discussing Kimbrough v. United States, 552 U.S. 85 (2007)). Here, there is no

indication that the district court did not understand the import of Kimbrough, or its

authority to vary from the Guidelines if it so desired. Cf. Henderson, 2011 WL

1613411, at *3, *8.

      In regard to Asieru’s substantive claim, we see no basis from which to

conclude that the court thought itself constrained by the Guidelines to impose a

sentence on Asieru that it thought to be inappropriate. Id. at *8 (“[D]istrict courts

are not obligated to vary from the . . . Guidelines on policy grounds if they do not

have, in fact, a policy disagreement with them.”). To the contrary, the court in this

case stated specifically that “the guideline range adequately takes into

consideration the specific facts and circumstances of this case, and the range is not

greater than necessary to satisfy the purposes of sentencing.”


                                           2
      Asieru’s general procedural claim that the district court failed to sufficiently

explain the sentence to allow for meaningful appellate review is similarly

contradicted by the record. The judge’s discussion of the various 18 U.S.C.

§ 3553(a) factors was both thorough and extensive. It more than “set forth enough

to satisfy the appellate court that he has considered the parties' arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” Rita v.

United States, 551 U.S. 338, 356 (2007); see United States v. Apodaca, — F.3d —,

2011 WL 1365794, at *3 (9th Cir. April 12, 2011).

      Finally, Asieru’s sentence, which was at the low end of the applicable

Guidelines range, was not substantively unreasonable. In addition to finding that

the “guideline range” was appropriate, the district court weighed each of the

necessary § 3553(a) factors. The court commented at length regarding the “severe

emotional and financial effect” on the lives of each of the victims and made clear

that it viewed Defendant’s violation as “a very serious offense” that “require[d] a

corresponding long sentence so as to promote respect for the law and provide just

punishment.” Nothing in Asieru’s argument or the record leads us to “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.

Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009).


                                          3
AFFIRMED.




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