                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 28 2016

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50570

               Plaintiff - Appellee,             D.C. No. 3:14-cr-00155-JLS

 v.
                                                 MEMORANDUM*
MARIO SOTELO-AYALA,

               Defendant - Appellant.


                     Appeal from the United States District Court
                        for the Southern District of California
                    Janis L. Sammartino, District Judge, Presiding

                            Submitted January 20, 2016**

Before:        CANBY, TASHIMA, and NGUYEN, Circuit Judges.

      Mario Sotelo-Ayala appeals from the district court’s judgment and

challenges the 60-month sentence imposed following his guilty-plea conviction for

attempted 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.

          *
             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).
      Sotelo-Ayala asserts that the district court procedurally erred by failing to

appreciate its discretion under Kimbrough v. United States, 552 U.S. 85 (2007), to

deviate from the Guidelines based on policy disagreements. We disagree. The

record reflects that the court considered Sotelo-Ayala’s Kimbrough argument, and

that it was aware of its discretion to vary from the Guidelines. See United States v.

Ayala-Nicanor, 659 F.3d 744, 753 (9th Cir. 2011) (“[T]hat the court imposed a

below Guidelines sentence demonstrates that it was well aware of its ability to do

so under Supreme Court precedent.”).

      Sotelo-Ayala next contends that the district court procedurally erred by

failing to consider his sentencing arguments and by failing to explain adequately

its sentencing decision. Reviewing de novo, see United States v. Grissom, 525

F.3d 691, 695-96 (9th Cir. 2008), we find no error. The record demonstrates that

the district court considered and addressed Sotelo-Ayala’s arguments for leniency,

and the court’s explanation of the sentence was adequate. See United States v.

Amezcua-Vasquez, 567 F.3d 1050, 1053-54 (9th Cir. 2009).

      AFFIRMED.




                                          2                                     14-50570
