                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 04 2013

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10620

               Plaintiff - Appellee,             D.C. No. 2:11-cr-00206-KJM-1

  v.
                                                 MEMORANDUM*
KIRBY ALLEN REYNOLDS, a.k.a.
Kirby Alan Reynolds,

               Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                          Submitted September 12, 2013**

Before:        HUG, FARRIS, and LEAVY, Circuit Judges.

       Kirby Allen Reynolds appeals from the district court’s judgment and

challenges the 63-month sentence imposed following his guilty-plea conviction for




          *
             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).
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Reynolds contends that the category VI criminal history substantially over-

represented his criminal history and that the district court therefore abused its

discretion by failing to depart under U.S.S.G. § 4A1.3(b)(1) or vary downwards.

When a district court makes a decision regarding whether to depart under U.S.S.G.

§ 4A1.3, we do not determine whether the court correctly applied § 4A1.3, but

instead determine whether the ultimate sentence was substantively reasonable. See

United States v. Ellis, 641 F.3d 411, 421-22 (9th Cir. 2011); see also United States

v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006). We review the sentence for abuse

of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).

      The district court did not abuse its discretion in imposing the 63-month

sentence. The sentence is not substantively unreasonable in light of the totality of

the circumstances and the 18 U.S.C. § 3553(a) factors, such as the appellant’s

extensive criminal history, including two prior state convictions for being a felon

in possession of a firearm, and the need to provide deterrence and promote respect

for the law. See id.

      AFFIRMED.




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