                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 24 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 16-50182

                Plaintiff-Appellee,             D.C. No. 3:16-cr-00047-BEN

 v.
                                                MEMORANDUM*
MARIO GARIBO-GALEANA,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                   Roger T. Benitez, District Judge, Presiding

                            Submitted April 11, 2017**

Before:      GOULD, CLIFTON, and HURWITZ, Circuit Judges.

      Mario Garibo-Galeana appeals from the district court’s judgment and

challenges the 36-month sentence and the $250 fine imposed following his guilty-

plea conviction for being a removed alien found in the United States, in violation

of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Garibo-Galeana contends that the district court procedurally erred and

violated his right to due process in several ways. We find no basis for remand.

First, in light of the undisputed facts in the presentence report, Garibo-Galeana has

not shown that the district court’s conclusion that he has a “violent” propensity was

clearly erroneous. See United States v. Christensen, 732 F.3d 1094, 1103 (9th Cir.

2013). Moreover, though the district court at one point incorrectly characterized

Garibo-Galeana’s 26 prior immigration apprehensions as removals, Garibo-

Galeana has not established that this error made the basis for the sentence. See

United States v. Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir. 2009). Finally,

contrary to Garibo-Galeana’s contention, the record reflects that the district court

considered his sentencing arguments and thoroughly explained its determination

that an above-Guidelines sentence was warranted. See United States v. Carty, 520

F.3d 984, 992 (9th Cir. 2008) (en banc).

      Garibo-Galeana next challenges the district court’s imposition of the $250

fine. We review for plain error, see United States v. Hernandez-Arias, 757 F.3d

874, 884 (9th Cir. 2014), and conclude that there was none. Even if Garibo-

Galeana did not have the ability to pay the fine at the time of sentencing, the

district court did not err in determining that the below-Guidelines fine could be

                                           2                                      16-50182
paid through the Inmate Financial Responsibility Program. See United States v.

Orlando, 553 F.3d 1235, 1240 (9th Cir. 2009) (district court may fine a presently

indigent defendant if it finds that the defendant has sufficient earning capacity to

pay the fine in the future). Moreover, the district court explained the fine

sufficiently. See id.

      Finally, Garibo-Galeana contends that his sentence is substantively

unreasonable in light of the district court’s rejection of the parties’ joint sentencing

recommendation. The above-Guidelines sentence is not an abuse of discretion in

light of the applicable 18 U.S.C. § 3553(a) factors and the totality of the

circumstances, including Garibo-Galeana’s failure to be deterred by his prior 36-

month sentence for the same offense. See Gall v. United States, 552 U.S. 38, 51

(2007); see also United States v. Higuera-Llamos, 574 F.3d 1206, 1211-12 (9th

Cir. 2009).

      AFFIRMED.




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