                                                                            FILED
                             NOT FOR PUBLICATION                            APR 24 2015

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



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 14-10259

                Plaintiff - Appellee,             D.C. No. 2:12-cr-01871-SRB

 v.
                                                  MEMORANDUM*
ROSARIO GUADALUPE RABAGO-
PALMA,

                Defendant - Appellant.


                     Appeal from the United States District Court
                              for the District of Arizona
                     Linda R. Reade, District Judge, Presiding**

                              Submitted April 22, 2015***

Before:         GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.

      Rosario Guadalupe Rabago-Palma appeals from the district court’s judgment

and challenges the 70-month sentence imposed following his guilty-plea

       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Linda R. Reade, Chief Judge of the United States
District Court for the Northern District of Iowa, sitting by designation.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326. We

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

      Rabago-Palma contends that the district court procedurally erred by failing

to adjust his sentence to account for time served on his state forgery conviction.

We disagree. Because Rabago-Palma had completed the state term of

imprisonment at the time of sentencing on the instant offense, he was not entitled

to an adjustment under U.S.S.G. § 5G1.3 (2011), which applies when the defendant

is subject to an “undischarged term of imprisonment.” Moreover, we do not

review for procedural correctness the district court’s decision not to depart

downward under Application Note 4 to section 5G1.3 or under section 5K2.23.

See United States v. Ellis, 641 F.3d 411, 421 (9th Cir. 2011).

      Rabago-Palma also contends that his sentence is substantively unreasonable

in light of the staleness of his prior conviction and because of the court’s failure to

depart downward to account for the time served on his state forgery conviction.

The district court did not abuse its discretion in imposing Rabago-Palma’s

sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The 70-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 Rabago-Palma’s criminal and immigration history. See Gall, 552 U.S. at


                                           2                                     14-10259
51. Moreover, the court was aware of the amount of time Rabago-Palma served on

the state conviction and reasonably exercised its discretion to decline to depart

downward on that basis in light of the circumstances of this case.

      AFFIRMED.




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