                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 13 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50090

              Plaintiff - Appellee,              D.C. No. 3:07-cr-00959-GT

  v.
                                                 MEMORANDUM*
JUAN MANUEL GUTIERREZ-
HERRERA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                  Gordon Thompson, Jr., District Judge, Presiding

                            Submitted March 10, 2014**

Before:       PREGERSON, LEAVY, and MURGUIA, Circuit Judges.

       Juan Manuel Gutierrez-Herrera 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).
      Gutierrez-Herrera contends that the district court erred by (i) failing to

calculate the Guidelines range and using the statutory maximum as a initial

benchmark for sentencing; (ii) failing to consider the applicable 18 U.S.C.

§ 3553(a) sentencing factors and his mitigating arguments; (iii) failing to explain

adequately the sentence imposed; and (iv) improperly relying on the need to

promote respect for the law in fashioning the sentence. We review for plain error,

see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and

find none. The record reflects that the court was aware of the Guidelines range and

used that range as the initial benchmark. In addition, the court adequately

considered Gutierrez-Herrera’s mitigating arguments and the applicable section

3553(a) sentencing factors, sufficiently explained the sentence, and did not choose

the sentence based on an improper factor. See United States v. Carty, 520 F.3d

984, 992-93 (9th Cir. 2008) (en banc).

      Gutierrez-Herrera next contends that his sentence is substantively

unreasonable. The district court did not abuse its discretion. See Gall v. United

States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable in light of

the totality of the circumstances and the 18 U.S.C. § 3583(e) sentencing factors,

including Gutierrez-Herrera’s failure to be deterred and breach of the court’s trust.

See id.; United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007).

      AFFIRMED.


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