                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 26 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 09-30164

               Plaintiff - Appellee,             D.C. No. 2:07-CR-02091-WFN

   v.
                                                 MEMORANDUM *
 JOSE GUADALUPE AGUILAR,

               Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Wm. Fremming Nielsen, District Judge, Presiding

                             Submitted January 11, 2010 **


Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Jose Guadalupe Aguilar appeals from the 115-month sentence imposed

following his jury-verdict conviction for being a felon in possession of a firearm,



          *
             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).

EG/Research
in violation of 18 U.S.C. § 922(g)(1), and possession of body armor, in violation of

18 U.S.C. § 931(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

       Aguilar contends that the district court judge committed procedural error by

relying on clearly erroneous facts at sentencing. The record reflects that the district

court judge did not procedurally err. See Gall v. United States, 552 U.S. 38, 51

(2007) (stating that it is procedural error to select a sentence based on clearly

erroneous facts).

       Aguilar also contends that the sentence at the top of the Guidelines range

was substantively unreasonable. However, the district court did not abuse its

discretion in rejecting Aguilar’s argument that he should receive some credit for

acceptance of responsibility. See id. Considering the totality of the circumstances,

the district court’s sentence was not substantively unreasonable. See id.

       AFFIRMED.




EG/Research                                2                                        09-30164
