                                                                             FILED
                            NOT FOR PUBLICATION                               JUL 02 2012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. 11-10222

               Plaintiff - Appellee,              D.C. No. 4:10-cr-01073-FRZ

  v.
                                                  MEMORANDUM *
LUIS FERNANDO VARGAS-CANELA,
a.k.a. Luis Ferando Vargas-Canela, a.k.a.
Luis Fernado Vargas-Canela,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Frank R. Zapata, District Judge, Presiding

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Luis Fernando Vargas-Canela appeals from the 36-month sentence imposed

following his guilty-plea conviction for reentry after deportation, in violation of




          *
             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).
8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Vargas-Canela first contends that the district court procedurally erred by

failing to calculate properly the advisory Guidelines range. Specifically, he argues

that the court erred in failing to depart on the basis of the relatively minor nature of

his prior conviction. This argument fails because the court correctly calculated the

pre-departure Guidelines range and varied downward in light of the nature of

Vargas-Canela’s prior offense and other mitigating factors.

      Vargas-Canela also contends that the district court erred in calculating the

Guidelines range because it should have awarded him a third point for acceptance

of responsibility under U.S.S.G. § 3E1.1(b). This argument is without merit

because Vargas-Canela has not shown that the government’s refusal to move for

the third point was arbitrary or based on an unconstitutional motive. See

United States v. Johnson, 581 F.3d 994, 1001 (9th Cir. 2009).

      Vargas-Canela next contends that the district court failed adequately to

explain the sentence. The record belies this contention, as well as his contention

that the court did not appreciate its discretion to vary from the Guidelines on policy

grounds.

      Finally, Vargas-Canela contends that his sentence is substantively

unreasonable. In light of the totality of the circumstances and the sentencing


                                            2                                    11-10222
factors set forth in 18 U.S.C. § 3553(a), the sentence substantially below the

advisory Guidelines range is not substantively unreasonable. See Gall v. United

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

      AFFIRMED.




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