                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         FEB 05 2016

                            FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No. 14-50497

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00795-SVW-1

 v.
                                                 MEMORANDUM*
MARIA ELIZABETH ONTIVEROS,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                           Submitted February 3, 2016**
                              Pasadena, California

Before: CALLAHAN and N.R. SMITH, Circuit Judges and RAKOFF,*** Senior
District Judge.




        *
             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).
        ***
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      Maria Elizabeth Ontiveros appeals her 24-month sentence following her

guilty-plea conviction for mail theft in violation of 18 U.S.C. § 1708. We have

jurisdiction under 28 U.S.C. § 1291. Where, as here, a defendant failed to object to

the district court’s alleged sentencing errors, we will grant relief only if the

defendant establishes that plain error affected her substantial rights. See United

States v. Waknine, 543 F.3d 546, 551, 553 (9th Cir. 2008). We review for an abuse

of discretion the substantive reasonableness of a sentence. United States v.

Apodaca, 641 F.3d 1077, 1082 (9th Cir. 2011). We affirm.

      The government concedes that the district court violated Federal Rule of

Criminal Procedure 32(i)(4)(A)(iii) by failing to solicit argument from the

government at the sentencing hearing. However, the record reflects that the

government filed a memorandum with the district court explaining its

recommendation before the sentencing hearing, defense counsel reminded the

district court of the government’s position at the hearing, and the district court

stated that it had reviewed the pleadings and arguments. See Waknine, 543 F.3d at

553-54 (holding that the defendant had not established that a Rule 32(i)(4)(A)(iii)

error affected his substantial rights where the government filed a memorandum

with the district court explaining its recommendation before the sentencing

hearing, the government referred the district court to that recommendation shortly


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after sentencing, and the record supported an inference that the district court had

reviewed the pleadings). Ontiveros therefore has not established that the district

court’s failure to solicit argument from the government affected her substantial

rights.

          The record does not support Ontiveros’s contention that the district court

plainly erred by failing to address the parties’ arguments in mitigation. The record

reflects that the district court considered the parties’ recommendations and

sufficiently explained the sentence. See Apodaca, 641 F.3d at 1081 (although

sentencing courts normally should explain their reasons for rejecting a party’s

position when it is based on a non-frivolous argument tethered a relevant 18 U.S.C.

§ 3553(a) factor, “[w]e have held that no lengthy explanation is necessary if the

record makes clear that the sentencing judge considered the evidence and

arguments” (citation and internal quotation marks omitted)).

          In light of the § 3553(a) sentencing factors and the totality of the

circumstances, including Ontiveros’s criminal history, the district court did not

abuse its discretion by imposing a within-Guidelines sentence. See Apodaca, 641

F.3d at 1082 (explaining standards for determining whether a sentence is

substantively reasonable).

          AFFIRMED.


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