                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 16 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 13-30123

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00060-HA-6

  v.
                                                 MEMORANDUM*
KINGSLEY IYARE OSEMWENGIE,

              Defendant - Appellant.

                  Appeal from the United States District Court
                            for the District of Oregon
                Ancer L. Haggerty, Senior District Judge, Presiding

                             Submitted May 14, 2014**
                              San Francisco, California

Before: SILVERMAN and GOULD, Circuit Judges, and LEMELLE, District
Judge.***

       Kingsley Osemwengie appeals from the district court’s judgment and its

210-month sentence. 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 Ninth Circuit Rule 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 Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
                                          -2-
      Osemwengie contends that the district court erred by (i) accepting the

Presentence Investigation Report’s base offense level of 34; (ii) counting two prior

convictions as separate convictions in calculating his Criminal History Category;

and (iii) failing to adequately explain the sentence, which Osemwengie also claims

was unreasonable. We review each of these arguments for plain error, see United

States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none.

      First, both the parties and the PSR agreed that Osemwengie’s base offense

level was 34, and thus the district court did not err, much less plainly err, when it

adopted that level. Second, the PSR was correct to conclude that Osemwengie’s

second prior conviction counted as an “intervening arrest” for purposes of Section

4A1.2(a)(2) of the Sentencing Guidelines, and thus the district court did not err,

much less plainly err, when it adopted that finding. Finally, the record as a whole

demonstrates that the district court adequately considered Osemwengie’s

mitigating arguments and the sentencing factors enumerated in 18 U.S.C. § 3553(a)

and sufficiently explained the sentence. See United States v. Carty, 520 F.3d 984,

992-93 (9th Cir. 2008) (en banc). Nor was the district court’s sentence, which

reflected a downward variance based on Section 3553(a) and was at the bottom of

the Guidelines range, an abuse of discretion. See Gall v. United States, 552 U.S.
                                         -3-
38, 51 (2007). The sentence is substantively reasonable in light of the totality of

the circumstances, including Osemwengie’s criminal history. See id.

      AFFIRMED.
