                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 20 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50295

               Plaintiff - Appellee,             D.C. No. 3:12-cr-03863-LAB

 v.
                                                 MEMORANDUM*
FIDEL MENDEZ-MALDONADO,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                              Submitted June 14, 2016**

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

      Fidel Mendez-Maldonado appeals from the district court’s judgment and

challenges the 24-month sentence imposed upon revocation of supervised release.

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 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).
      Mendez-Maldonado contends that the district court’s explanation for the

above-Guidelines sentence was inadequate because it erroneously relied on

application note 4 to U.S.S.G. § 7B1.4 to justify the upward variance. He further

contends that the court procedurally erred and violated his right to due process by

relying on clearly erroneous facts, namely, that Mendez-Maldonado received a

“tremendous break” when he received a six-month sentence for a new immigration

conviction, and that he drove drunk on more occasions than the five incidents for

which he was convicted. These claims fail. We do not review for procedural

correctness the district court’s reliance on application note 4 to U.S.S.G. § 7B1.4.

See United States v. Christensen, 801 F.3d 970, 1024 (9th Cir. 2015). The record

reflects that the district court adequately explained the sentence. See United States

v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Furthermore, the district

court did not rely on any clearly erroneous facts. See United States v. Graf, 610

F.3d 1148, 1157 (9th Cir. 2010) (“A finding is clearly erroneous if it is illogical,

implausible, or without support in the record.”).

      Mendez-Maldonado also contends that his sentence is substantively

unreasonable because the district court’s reasoning was influenced, at least

implicitly, by the concept of punishment and because the court placed too much

weight on some of the 18 U.S.C. § 3583(e) sentencing factors. The district court


                                           2                                    15-50295
did not abuse its discretion in imposing Mendez-Maldonado’s sentence. See Gall

v. United States, 552 U.S. 38, 51 (2007). The above-Guidelines sentence is

substantively reasonable in light of the section 3583(e) sentencing factors and the

totality of the circumstances, including Mendez-Maldonado’s criminal and

immigration history and his failure to be deterred from reentering the country by

his prior 24-month sentence. See Gall, 552 U.S. at 51.

      AFFIRMED.




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