                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 31 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 16-50442

                Plaintiff-Appellee,             D.C. No. 3:16-cr-00902-DMS

 v.
                                                MEMORANDUM*
ERIC MENDOZA,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                    Dana M. Sabraw, District Judge, Presiding

                           Submitted October 23, 2017**

Before:      LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.

      Eric Mendoza appeals from the district court’s judgment and challenges the

80-month sentence imposed following his guilty-plea conviction for importation of

methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Mendoza contends that the district court procedurally erred by failing to

appreciate or acknowledge its discretion to vary from the career offender guideline

based on a policy disagreement under Kimbrough v. United States, 552 U.S. 85

(2007). We review for plain error, see United States v. Valencia-Barragan, 608

F.3d 1103, 1108 (9th Cir. 2010), and conclude there was none.

      The record reflects that the district court considered the parties’ arguments,

noted its discretion to vary from the Guidelines, and imposed a substantially

below-Guidelines sentence based on the 18 U.S.C. § 3553(a) factors. Under such

circumstances, the district court did not procedurally err by failing to appreciate its

discretion to vary from the Guidelines under Kimbrough, nor did it fail to explain

adequately its exercise of discretion. See United States v. Ayala-Nicanor, 659 F.3d

744, 752-53 (9th Cir. 2011).

      AFFIRMED.




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