                                                                              FILED
                           NOT FOR PUBLICATION                                JUN 19 2015

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



                           FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                    No. 14-10399

              Plaintiff-Appellee,             D.C. No. 2:13-cr-00149-KJD-CWH-2

      v.                                      MEMORANDUM*

 THOMAS LEWIS,

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                             Submitted June 11, 2015**
                             San Francisco, California

Before: SCHROEDER and IKUTA, Circuit Judges, and SEABRIGHT, *** District
Judge.

      Thomas Lewis (“Lewis”) appeals from the district court’s judgment and


      *
        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).
      ***
          The Honorable J. Michael Seabright, United States District Judge for the
District of Hawaii, sitting by designation.
sentence imposed following his guilty-plea conviction for conspiracy to commit

armed bank robbery in violation of 18 U.S.C. §§ 371 and 2113(a) and (d) (“count

1”), armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) (“count 2”),

and use of a firearm during and in relation to a crime of violence in violation of 18

U.S.C. § 924(c)(1)(A)(ii) and (2) (“count 3”). The district court imposed a within-

Guidelines 57-month sentence on counts 1 and 2 to run concurrently, and a

mandatory 84-month sentence on count 3, to be served consecutive to the sentence

imposed on counts 1 and 2. Lewis argues that the district court abused its

discretion in imposing the 57-month sentence. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

      Lewis concedes that his criminal history points were properly calculated, but

argues that the district court failed to properly address the 18 U.S.C.

§ 3553(a) factors and his request for a downward variance in light of the staleness

of his 1993 conviction. Contrary to Lewis’ argument, the district court explicitly

considered, and rejected, this argument. The district court “listened to each of

[Lewis’] argument[s]” that his sentence should vary from the Guidelines, and “then

simply found these circumstances insufficient to warrant a sentence lower than the

Guidelines range . . . .” Rita v. United States, 551 U.S. 338, 358 (2007).

      Lewis also argues that his sentence is substantively unreasonable under

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United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), given the

staleness of his 1993 prior conviction, the nonviolent nature of his more recent

convictions, and his family background. The district court did not abuse its

discretion in sentencing Lewis at the low end of the Guidelines range. See United

States v. Ressam, 679 F.3d 1069, 1088 (9th Cir. 2012) (en banc) (“[R]eview of the

substantive reasonableness of a sentence is deferential and will provide relief only

in rare cases.”). Although most of Lewis’ more recent convictions are nonviolent

and appear to be alcohol-related, the sentence is substantively reasonable in light of

the violent nature of the offense conduct and Lewis’ history of criminal offenses

showing multiple revocations of parole and/or probation. See United States v.

Carty, 520 F.3d 984, 994-95 (9th Cir. 2008) (en banc).

      Finally, Lewis waived his argument that the record fails to address his life-

long alcohol dependence where he did not raise such argument in his opening brief,

and affirmed to the district court during sentencing that he had no objections to the

factual accuracy of the Presentence Investigative Report. See Rizk v. Holder, 629

F.3d 1083, 1091 n.3 (9th Cir. 2011); United States v. Keller, 902 F.2d 1391,

1393-94 (9th Cir. 1990).

      AFFIRMED.




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