                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 21 2012

                                                                         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. 11-10463

               Plaintiff - Appellee,              D.C. No. 2:10-cr-00411-LDG

  v.
                                                  MEMORANDUM *
GUSTAVO MENDOZA-BUSTOS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Lloyd D. George, District Judge, Presiding

                              Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       Gustavo Mendoza-Bustos appeals from the 70-month sentence imposed

following his guilty-plea conviction for distribution of a controlled substance and

possession of a controlled substance with intent to distribute, in violation of 21




          *
             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).
U.S.C. § 841(a)(1), (b)(1)(B)(viii). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

       Mendoza-Bustos contends that the district court procedurally erred by failing

to explain adequately the sentence imposed. The record belies this contention.

       Mendoza-Bustos next contends that the district court erred by failing to

make any findings of fact, or to conduct an evidentiary hearing, regarding his

assertion that the government’s refusal to move for a sentence reduction under

U.S.S.G. § 5K1.1 was based on a desire to punish him for not entering into a plea

agreement. The court was not required to conduct an evidentiary hearing, or to

make findings of fact, because Mendoza-Bustos did not make a “substantial

threshold showing” that the government had unconstitutional motives or acted

arbitrarily. See Wade v. United States, 504 U.S. 181, 185-86 (1992); see also

United States v. Murphy, 65 F.3d 758, 764 (9th Cir. 1995) (“Maintaining the

effectiveness of the plea negotiation process is a legitimate governmental

interest.”).

       Finally, Mendoza-Bustos contends that his sentence is substantively

unreasonable. In light of the totality of the circumstances and the 18 U.S.C.




                                          2                                      11-10463
§ 3553(a) sentencing factors, Mendoza-Bustos’s within-Guidelines sentence is

substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




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