                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 27 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50205

               Plaintiff - Appellee,             D.C. No. 3:12-cr-04543-WQH

  v.
                                                 MEMORANDUM*
JUAN RODRIGUEZ-GONZALEZ, a.k.a.
Juan Flores Rodriguez, a.k.a. Juan Manuel
Rodriguez,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                            Submitted February 18, 2014**

Before:        ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

       Juan Rodriguez-Gonzalez appeals from the district court’s judgment and

challenges the 37-month sentence imposed following his guilty-plea conviction for

being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.

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

      Rodriguez-Gonzalez contends that the district court procedurally erred by

failing to appreciate its discretion under Kimbrough v. United States, 552 U.S. 85

(2007), to vary downward from the Guideline range on policy grounds. The record

reflects that the court considered Rodriguez-Gonzalez’s policy-based arguments

and declined to exercise its discretion to vary from the Guidelines. See United

States v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011).

      Rodriguez-Gonzalez also contends that his sentence is substantively

unreasonable because this is his first immigration conviction. He argues that the

district court gave too much weight to his criminal history, which was already

factored into the Guideline range, and did not give sufficient consideration to the

need to avoid unwarranted sentencing disparities, the nature and circumstances of

the offense, and the fact that he had not previously spent more than a year in jail.

The district court did not abuse its discretion in imposing Rodriguez-Gonzalez’s

sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The 37-month

sentence at the bottom of the Guidelines range is substantively reasonable in light

of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances,

including Rodriguez-Gonzalez’s criminal and immigration history. See id.

      AFFIRMED.




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