                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 03 2013

                                                                        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. 13-50079

               Plaintiff - Appellee,             D.C. No. 3:11-cr-03988-GT

  v.
                                                 MEMORANDUM *
FRANCISCO MENDEZ-AVALOS,

               Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                  Gordon Thompson, Jr., District Judge, Presiding

                           Submitted September 24, 2013 **

Before:        RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Francisco Mendez-Avalos appeals from the district court’s judgment and

challenges the 12-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).
      Mendez-Avalos contends that the district court violated Federal Rule of

Criminal Procedure 32(i)(4)(A)(iii) by failing to provide an opportunity for the

government to present its sentencing recommendation. We review for harmless

error. See United States v. Franco-Flores, 558 F.3d 978, 980-81 (9th Cir. 2009).

Even if Rule 32(i)(4)(A)(iii) is applicable to supervised release revocation

proceedings, any error here was harmless because the record reflects that the court

knew of the government’s sentencing recommendation and there is no evidence

Mendez-Avalos would have received a shorter sentence if the government had

been given the opportunity to present its recommendation. See United States v. Ali,

620 F.3d 1062, 1074 (9th Cir. 2010).

      Mendez-Avalos also contends that the district court erred procedurally by

failing to consider and respond to his mitigation argument that he had a good-faith

belief that he was a United States citizen at the time of his offense. The record

reflects that the district court considered Mendez-Avalos’s argument and explained

why it did not warrant a lower sentence.

      Mendez-Avalos finally contends that the 12-month sentence is substantively

unreasonable. The district court did not abuse its discretion in imposing Mendez-

Avalos’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The

within-Guidelines sentence is substantively reasonable in light of the 18 U.S.C.


                                           2                                   13-50079
§ 3583(e) sentencing factors and the totality of the circumstances, including

Mendez-Avalos’s criminal history and breach of the court’s trust. See id.; United

States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007).

      AFFIRMED.




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