                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 18 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50560

              Plaintiff - Appellee,              D.C. No. 2:14-cr-00096-DSF-1

 v.
                                                 MEMORANDUM*
ALEX MIGUEL MARQUEZ-FUENTES,
AKA Alex Marquez Fuentes,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                       Argued and Submitted March 9, 2016
                              Pasadena, California

Before: REINHARDT, MURGUIA, and OWENS, Circuit Judges.

      Defendant Alex Marquez-Fuentes appeals the 70-month sentence he received

for unlawful reentry under 8 U.S.C. § 1326, arguing that the district judge’s sentence

was both procedurally and substantively unreasonable.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       Because Marquez-Fuentes did not raise his argument below that the sentence

was procedurally unreasonable, we review the procedural reasonableness of the

sentence for plain error. United States v. Valencia-Barragan, 608 F.3d 1103, 1108

(9th Cir. 2010). To establish plain error, (1) there must be an “error or defect,” (2) the

“error must be clear or obvious, rather than subject to reasonable dispute,” (3) the

“error must have affected the appellant’s substantial rights, which in the ordinary case

means he must demonstrate that it ‘affected the outcome of the district court

proceedings,’” and (4) if the above three prongs are satisfied, this court has the

discretion to remedy the error “only if the error ‘seriously affects the fairness, integrity

or public reputation of judicial proceedings.’” Puckett v. United States, 556 U.S. 129,

135 (2009) (quoting United States v. Olano, 507 U.S. 725, 734, 736 (1993)). We

review the substantive reasonableness claim for abuse of discretion. United States v.

Autery, 555 F.3d 864, 871 (9th Cir. 2009).

       1. Marquez-Fuentes first argues that the district court committed procedural

error when it discredited his mitigation evidence showing that he was kidnapped in

Honduras, including a police report regarding that kidnapping. The district court

discredited the kidnapping because the police report was made by Marquez-Fuentes’s

cousin, who was not a witness to the crime, after Marquez-Fuentes had already been

freed. Although the evidence is certainly open to differing interpretations, the district


                                       Page 2 of 4
court’s finding was not a “clear or obvious” error and therefore was not plain error.

See United States v. Christensen, 732 F.3d 1094, 1105 (9th Cir. 2013).

      2. Marquez-Fuentes next contends that the district court plainly erred in its

finding that he was minimizing his criminal history of spousal abuse because it

mistakenly stated that Marquez-Fuentes denied this charge after being found guilty

in a jury trial in state court when, in fact, he denied it after having pled nolo

contendere. Both parties agree that the district court committed clear error. The

question therefore is whether this error affected Marquez-Fuentes’s substantial rights

under prong three of the plain error test—that is, whether there was a reasonable

probability that this error may have led to a sentence that was even one month longer

than necessary. United States v. Joseph, 716 F.3d 1273, 1280 (9th Cir. 2013).

      Here, there is not a reasonable probability that this error affected Marquez-

Fuentes’s substantial rights. Although he pled nolo contendere in state court to the

domestic violence charge, he admitted that he had “in fact” committed it during his

plea hearing in federal court. It is highly unlikely that the district court—after listing

a number of aggravating factors—would have sentenced Marquez-Fuentes to less than

70 months based on the difference between his denying the crime of domestic

violence after having admitted it in court rather than after having been found guilty

of it by a jury. See Christensen, 732 F.3d at 1106. Therefore, this was not plain error.


                                      Page 3 of 4
      3.     Marquez-Fuentes finally argues that the sentence was substantively

unreasonable. We disagree. The district court appropriately considered the 18 U.S.C.

§ 3553(a) factors when it sentenced Marquez-Fuentes to the bottom of his sentencing

guidelines range. It did not abuse its discretion. See United States v. Treadwell, 593

F.3d 990, 1015 (9th Cir. 2010).

      AFFIRMED.




                                    Page 4 of 4
                                                                             FILED
USA v. Marquez-Fuentes, 14-50560                                              MAR 18 2016

                                                                          MOLLY C. DWYER, CLERK
Reinhardt, Circuit Judge, dissenting:                                       U.S. COURT OF APPEALS



      I would hold that the discrediting of the kidnapping and the police report for the

reasons given by the district court constituted “clear and obvious error” and therefore

plain error. Accordingly, I would vacate the sentence and remand for resentencing.
