                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 21 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 09-10176

               Plaintiff - Appellee,              D.C. No. 2:08-cr-00839-ROS

  v.
                                                  MEMORANDUM *
JOSE PULIDO-GONZALEZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Roslyn O. Silver, District Judge, Presiding

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Jose Pulido-Gonzalez appeals from the 57-month sentence imposed

following his guilty-plea conviction for reentry after deportation, in violation of 8

U.S.C. § 1326(a). 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 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).
      Pulido-Gonzalez contends that the Government’s refusal to offer him a fast-

track plea bargain because of his criminal and immigration history violated his

constitutional rights. This contention lacks merit because the decision not to offer

Pulido-Gonzalez a fast-track plea was within the prosecutor’s discretion, and the

district court did not clearly err when it concluded that Pulido-Gonzalez did not

meet his burden of establishing a prima facie case of invidious discrimination. See

United States v. Armstrong, 517 U.S. 456, 464-65 (1996); see also United States v.

Estrada-Plata, 57 F.3d 757, 760-61 (9th Cir. 1995).

      Pulido-Gonzalez next contends that the district court procedurally erred and

that his sentence is substantively unreasonable because the district court: (1) failed

to consider sentencing disparities with other defendants offered fast-track

dispositions; and (2) treated the Guidelines as mandatory. The record indicates

that the district court did not procedurally err. See United States v. Carty, 520 F.3d

984, 991-92, 995 (9th Cir. 2008) (en banc); see also United States v. Gonzalez-

Zotelo, 556 F.3d 736, 740 (9th Cir.), cert. denied, 130 S. Ct. 83 (2009). Further,

considering the totality of the circumstances, including the 18 U.S.C. § 3553(a)

sentencing factors, the sentence at the bottom of the Guidelines range is

substantively reasonable. See Carty, 520 F.3d at 993.

      AFFIRMED.


                                           2                                    09-10176
