                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 11 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10598

              Plaintiff - Appellee,              D.C. No. 4:10-cr-01515-RCC-
                                                 GEE-1
  v.

BARTOLO RODRIGUEZ-FUENTES,                       MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    Raner C. Collins, District Judge, Presiding

                       Argued and Submitted June 15, 2012
                            San Francisco, California

Before: HUG, RAWLINSON, and IKUTA, Circuit Judges.

       Appellant Bartolo Rodriguez-Fuentes appeals the district court’s imposition

of a 60-month sentence for illegal reentry following deportation in violation of 8

U.S.C. § 1326, as enhanced by 8 U.S.C. § 1326(b)(2).




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                     Page 1 of 3
      The district court did not err in applying a 16-level enhancement pursuant to

U.S.S.G. § 2L1.2(b)(1)(A) based upon Rodriguez-Fuentes’ prior state conviction

as evidenced by the Information and Abstract of Judgment. See United States v.

Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th Cir. 2007) (“A trial court may rely

upon the abstract of judgment and charging document to conclude there is clear

and convincing evidence that the defendant had a qualifying conviction under

U.S.S.G. § 2L1.2(b)(1)(A). . . .”) (citation omitted); see also United States v. Leal-

Vega, No. 11-50065, - - - F.3d - - -, 2012 WL 1940217, at *7 (9th Cir. May 30,

2012) (same).



      As Rodriguez-Fuentes conceded at oral argument, the district court did not

err in its application of § 4A1.2(a)(2), because “[p]rior sentences always are

counted separately if the sentences were imposed for offenses that were separated

by an intervening arrest (i.e., the defendant is arrested for the first offense prior to

committing the second offense),” U.S.S.G. § 4A1.2(a)(2), and a sentence imposed

for a probation revocation is counted separately from a sentence for a new criminal

conviction imposed at the same time, id. § 4A1.2 cmt. n. 11.




                                      Page 2 of 3
      Because Rodriguez-Fuentes “fail[ed] to object on the ground that the district

court did not sufficiently address and apply the factors listed in § 3553(a),” we

review his argument to that effect for plain error. United States v. Autery, 555 F.3d

864, 869 (9th Cir. 2009) (citations, footnote reference, and internal quotation

marks omitted). The district court did not plainly err because it “set forth enough

of an explanation to satisfy the appellate court that [the district court] has

considered the parties’ arguments and has a reasoned basis for exercising [its] own

legal decisionmaking authority. . . .” United States v. Ayala-Nicanor, 659 F.3d 744,

752 (9th Cir. 2011) (citation, alteration, and internal quotation marks omitted).

“The sentencing transcript demonstrates that the district court recognized its

discretion . . . to vary from the Sentencing Guidelines, and that it did in fact impose

a sentence that varied from the Guidelines range––just not by as many months as

[Rodriguez-Fuentes] requested. . . .” Id. Nor did the district court abuse its

discretion by imposing a substantively unreasonable sentence. See Gall v. United

States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




                                      Page 3 of 3
