                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 15 2012

                                                                        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. 12-50100

               Plaintiff - Appellee,             D.C. No. 3:08-cr-00625-JAH

  v.
                                                 MEMORANDUM *
JAVIER MORENO-MENDOZA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                             Submitted August 8, 2012 **

Before:        ALARCÓN, BERZON, and IKUTA, Circuit Judges.

       Javier Moreno-Mendoza appeals from the 6-month sentence imposed upon

revocation of supervised release. 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).
      Moreno-Mendoza contends that the district court procedurally erred because

it failed to consider the 18 U.S.C. § 3583(e) sentencing factors, failed to consider

his arguments in mitigation, and failed adequately to explain his sentence. The

district court listened to Moreno-Mendoza’s mitigating arguments and then

imposed a below-Guidelines sentence. It did not plainly err. See United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010).

      Moreno-Mendoza also contends that his sentence is substantively

unreasonable because the district court failed to properly consider the sentencing

factors. The below-Guidelines sentence is substantively reasonable in light of the

totality of the circumstances and the section 3583(e) sentencing factors. See Gall

v. United States, 552 U.S. 38, 51 (2007).

      Moreno-Mendoza’s contention that section 3583(e)(3) is unconstitutional is

foreclosed by United States v. Santana, 526 F.3d 1257, 1262 (9th Cir. 2008).

      AFFIRMED.




                                            2                                   12-50100
