                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 23 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10482

               Plaintiff - Appellee,             D.C. No. 2:12-cr-01201-JAT-1

  v.
                                                 MEMORANDUM*
JOSE CABRERA,

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                          Submitted September 12, 2013**

Before:        HUG, FARRIS, and LEAVY, Circuit Judges.

       Jose Cabrera appeals from the district court’s judgment and challenges the

37-month sentence imposed following his guilty-plea conviction for violating 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 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).
      Cabrera contends that the district court did not adequately explain the

reasons for the sentence. He contends that the district court failed to explain the

denials of his request to impose a lower sentence on the basis that he had been

rehabilitated while serving a sentence in state prison and his request that the court

sentence him using the range set forth in a rejected fast-track plea offer. The

district court adequately explained the reasons for the sentence. See United States

v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). The court addressed

Cabrera’s argument related to his state sentence, and the district court was not

required to address Cabrera’s frivolous argument that he should receive a sentence

based on a rejected fast-track plea agreement. See Carty, 520 F.3d at 992-93; cf.

United States v. Gonzalez-Zotelo, 556 F.3d 736, 739-41 (9th Cir. 2009) (holding

that district court plainly erred when it decided to impose a sentence comparable

to a fast-track sentence where the defendant did not enter into a fast-track plea

agreement).

      Cabrera also contends that the sentence is substantively unreasonable. We

review for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).

The district court did not abuse its discretion. The sentence is substantively

reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a)

factors, including not only Cabrera’s state prison sentence and efforts towards


                                          2                                      12-10482
rehabilitation, but also his rejection of the fast-track plea agreement and his

criminal history, which is entirely distinct from the offense at issue here. See

Gall, 552 U.S. at 51; cf. United States v. Defterios, 343 F.3d 1020, 1023-24 (9th

Cir. 2003) (recognizing that delay in indictment may sometimes be a basis for a

sentencing departure, but holding that district court erred when it decreased

sentence based on a delay in an indictment where the offenses were separate

crimes distinct in time, place, and victims).

      AFFIRMED.




                                          3                                       12-10482
