                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           DEC 27 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 10-50314

              Plaintiff - Appellee,              D.C. No. 3:10-cr-01024-LAB-1

  v.
                                                 MEMORANDUM *
CARLOS VALENZUELA-QUINTERO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                     Argued and Submitted December 9, 2011
                              Pasadena, California

Before: PREGERSON and PAEZ, Circuit Judges, and JONES,** District Judge.

       Carlos Valenzuela-Quintero appeals the district court’s sentence of 56

months in custody. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
      “It would be procedural error for a district court to fail to calculate—or to

calculate incorrectly—the Guidelines range; to treat the Guidelines as mandatory

instead of advisory; to fail to consider the § 3553(a) factors; to choose a sentence

based on clearly erroneous facts; or to fail adequately to explain the sentence

selected, including any deviations from the Guidelines range.” United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

      The district court did not commit procedural error in the instant case. The

district court clearly understood its responsibility to calculate the Guidelines range

correctly at the beginning of the sentencing process, and it did so. See id. at 991.

Furthermore, the district court understood that the Guidelines are advisory. See

United States v. Booker, 543 U.S. 220 (2005). Finally, the district court considered

the factors enumerated in 18 U.S.C. § 3553(a), including the Guidelines range, in

sentencing Valenzuela-Quintero, and explained its choice of sentence sufficiently.

See Carty, 520 F.3d at 991. Any misunderstanding of Spears v. United States, 555

U.S. 261 (2009), or of Valenzuela-Quintero’s written objections to the pre-

sentence report, was harmless error. See United States v. Munoz-Camarena, 631

F.3d 1028, 1030 (9th Cir. 2011) (harmless error standard applies to mistakes made

in sentencing).




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      Because Valenzuela-Quintero made no cognizable policy argument along

the lines of Kimbrough v. United States, 552 U.S. 85 (2007) in his written

objections to the pre-sentence report or at the sentencing hearing, the district court

was not required to address such an argument in explaining the basis for its

sentence. See United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011).

      The district court did not abuse its discretion in declining to follow United

States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009) when deciding whether

to vary from the Sentencing Guidelines range. The district court’s discussion of

Amezcua-Vasquez simply distinguished that opinion from the instant case on the

facts, and declined to extend its holding. The existence of proposed amendments

to the relevant Sentencing Guidelines that would impose only an 8-level

enhancement for a prior conviction that no longer scores for criminal history points

does not affect Amezcua-Vasquez’s applicability as precedent. See United States v.

Hernandez-Valdovinos, 352 F.3d 1243, 1249 (9th Cir. 2003).

      AFFIRMED.




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