                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 27 2011

                                                                        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. 11-10098

               Plaintiff - Appellee,             D.C. No. 4:10-cr-00795-RCC

  v.
                                                 MEMORANDUM *
BAY IGNACIO MENDIVIL-SILVA,
a.k.a. Bay Ignacio Mendevil-Silva,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Bay Ignacio Mendivil-Silva appeals from the 78-month sentence imposed

following his guilty-plea conviction for importation of cocaine, in violation of

21 U.S.C. §§ 952(a), 960(a)(1) and 960(b)(1)(A)(ii), and possession with intent to


          *
             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).
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii)(II). We

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

      Mendivil-Silva contends that remand is required because the district court

did not recognize its discretion to vary from the advisory sentencing Guidelines

range pursuant to Kimbrough v. United States, 552 U.S. 85 (2007). The record

belies that contention. The district court understood that had discretion to vary but

concluded that a within-Guidelines sentence was appropriate for Mendivil-Silva.

      To the extent that Mendivil-Silva also contends that his sentence was

substantively unreasonable, the contention fails. In light of the totality of the

circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a), the 78-

month sentence is substantively reasonable. See Gall v. United States, 552 U.S.

38, 51 (2007).

      AFFIRMED.




                                           2                                        11-10098
