                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 27 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 18-50166

                Plaintiff-Appellee,             D.C. No. 3:17-cr-02526-BEN

 v.
                                                MEMORANDUM*
JOSE LUIS ROLDAN-GIL,

                Defendant-Appellant.

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

                          Submitted February 19, 2019**

Before:      FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

      Jose Luis Roldan-Gil appeals the district court’s judgment and challenges

the 36-month sentence imposed following his guilty-plea conviction for being a

removed alien found in the United States, in violation of 8 U.S.C. § 1326. 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).
      Roldan-Gil contends that the district court procedurally erred by failing to

explain the reasons for the sentence and its rejection of his deterrence arguments

and request for three-level departure for diminished capacity under U.S.S.G.

§ 5K2.13. We review for harmless error, see United States v. Munoz-Camarena,

631 F.3d 1028, 1030 (9th Cir. 2011), and conclude that the court did not err. The

district court explained that it varied upwards 12 months because of Roldan-Gil’s

extensive immigration history, his lengthy criminal history, and the failure of a

prior 80-month sentence for the same offense to deter him. Additionally, the

record demonstrates that the district court considered Roldan-Gil’s diminished

capacity argument and treated his mental illness as a mitigating factor in its

analysis of the 18 U.S.C. § 3553(a) sentencing factors. The record also

demonstrates that the court considered Roldan-Gil’s deterrence arguments and

simply was not persuaded by them.

      Roldan-Gil also contends that the sentence is substantively unreasonable in

light of its finding that Roldan-Gil suffered from a mental illness. The district

court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51

(2007). The above-Guidelines sentence is substantively reasonable in light of the

section 3553(a) sentencing factors and the totality of the circumstances. See id.

Contrary to Roldan-Gil’s contention, the district court reasonably concluded that

Roldan-Gil was a danger to the public based on the entirety of his criminal history,


                                          2                                      18-50166
which included recent acts of violence in addition to his more remote criminal

convictions.

      AFFIRMED.




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