                             NOT FOR PUBLICATION                         FILED
                     UNITED STATES COURT OF APPEALS                       FEB 24 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10315

             Plaintiff - Appellee,               D.C. No. 3:12-cr-00561-WHA

   v.
                                                 MEMORANDUM*
MICHAEL STEVEN BANUELOS, a.k.a.
Ferrari Mike,

             Defendant - Appellant.

                     Appeal from the United States District Court
                       for the Northern District of California
                      William Alsup, District Judge, Presiding

                            Submitted February 17, 2015**

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

        Michael Steven Banuelos appeals from the district court’s judgment and

challenges the 78-month sentence imposed following his guilty-plea conviction for

wire fraud, in violation of 18 U.S.C. § 1343. We have jurisdiction under 28



        *
             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).
U.S.C. § 1291, and we affirm.

      Banuelos contends that the district court (1) procedurally erred by according

excessive weight to factors that were already incorporated into the Guidelines range,

and (2) procedurally erred and violated Banuelos’s right to due process by

considering clearly erroneous and unreliable facts from a victim impact statement.

These claims fail. The court did not err by varying upward based upon its

determination that the Guidelines range did not adequately account for the

egregiousness of Banuelos’s conduct. See United States v. Christensen, 732 F.3d

1094, 1100-01 (9th Cir. 2013) (court may vary upward based on factors already

incorporated into the Guidelines calculations). Further, insofar as the district court

considered the victim impact statement, the court did not err because Banuelos has

not shown that the statement was false or unreliable. See id. at 1104-06 & n.2.

      Banuelos next contends that his sentence is substantively unreasonable in

light of the mitigating factors and the parties’ joint request for a within-Guidelines

sentence. The sentence is substantively reasonable in light of the 18 U.S.C.

§ 3553(a) sentencing factors and the totality of the circumstances, including the

nature of the offense. See Gall v. United States, 552 U.S. 38, 51 (2007).

      AFFIRMED.

                                           2                                    13-10315
