                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 02 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10508

              Plaintiff-Appellee,                D.C. No. 4:11-CR-02774-RCC-
                                                 LAB-1
  v.

RAFAEL FRANCO-REYES,                             MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Raner C. Collins, Chief District Judge, Presiding

                    Argued and Submitted September 11, 2013
                            San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and BEISTLINE, Chief
District Judge.**




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **     The Honorable Ralph R. Beistline, Chief United States District Judge
for the District of Alaska, sitting by designation.
      Appellant Rafael Franco-Reyes appeals the introduction of certain evidence

at his criminal trial. Franco-Reyes also disputes the procedure used in calculating

his sentence.

      Under Federal Rule of Criminal Procedure 12(b)(3), a party wishing to

suppress evidence must file a motion to suppress prior to trial. Under Rule 12(e), a

failure to timely file a motion to suppress constitutes waiver of the issue. See

United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002). Here, Franco-Reyes

did not move to suppress Exhibits 7 and 8 or the agents’ testimony prior to trial.

As a consequence, Franco-Reyes waived his challenge to the admission of such

evidence.

      “When a defendant does not raise an objection to his sentence before the

district court, we apply plain error review.” United States v. Hammons, 558 F.3d

1100, 1103 (9th Cir. 2009) (citation omitted). The applicable Guidelines range

must be calculated correctly; it would be a “significant procedural error” for a

district court to fail to do so. United States v. Munoz-Camarena, 631 F.3d 1028,

1030 (9th Cir. 2011).

      Here, like in United States v. Carty, 520 F.3d 984, 995 (9th Cir. 2008), the

district court read both parties’ sentencing memoranda that discussed the

sentencing factors and heard both parties’ sentencing arguments. Franco-Reyes’


                                          2
Sentencing Memorandum referenced an offense level of eighteen and a criminal

history category of III, with a resulting Sentencing Guidelines range of thirty-three

to forty-one months, including a requested two-level reduction for acceptance of

responsibility.

      The district court, while not stating the offense level and criminal history

category, explicitly adopted the sentencing range proffered by Franco-Reyes in his

Sentencing Memorandum, which was arrived at by using the offense level and

criminal history category urged in that memorandum. The court also explicitly

granted the requested two-level reduction.

      Like the district court in Carty, the district court here stayed within the

Guidelines range, sentencing Franco-Reyes to forty-one months. There was no

doubt among the parties as to the offense level and criminal history category relied

upon. Clear error, therefore, has not been established.

      The decision of the district court is AFFIRMED.




                                           3
