                                                                           FILED
                              NOT FOR PUBLICATION                          DEC 19 2013

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



                               FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 12-10405

                 Plaintiff - Appellee,            D.C. No. 4:12-cr-00790-CKJ

  v.
                                                  MEMORANDUM*
GUMERCINDO RODRIGUEZ-SANTES,

                 Defendant - Appellant.


                      Appeal from the United States District Court
                               for the District of Arizona
                       Christina Reiss, Chief Judge, Presiding**

                            Submitted December 17, 2013***

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

       Gumercindo Rodriguez-Santes appeals from the district court’s judgment

and challenges the 51-month sentence imposed following his guilty-plea



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Christina Reiss, Chief Judge of the United States
District Court for the District of Vermont, sitting by designation.
           ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conviction for reentry after deportation, in violation of 8 U.S.C. § 1326. We have

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

      Rodriguez-Santes contends that the district court procedurally erred by

failing to appreciate its discretion under Kimbrough v. United States, 552 U.S. 85

(2007), to deviate from the Sentencing Guidelines based on policy differences with

the Guidelines, and by basing his sentence on a factually incorrect finding. We

review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,

1108 & n.3 (9th Cir. 2010), and we find none. The record reflects that the district

court considered Rodriguez-Santes’s policy-based argument, but found that

argument unpersuasive and therefore declined to exercise its discretion to vary

from the Guidelines on those grounds. See United States v. Henderson, 649 F.3d

955, 964 (9th Cir. 2011) (“[D]istrict courts are not obligated to vary from the . . .

Guidelines on policy grounds if they do not have, in fact, a policy disagreement

with them.”). Additionally, the district court’s finding that Rodriguez-Santes had

“a number” of reentries was not factually incorrect, because the undisputed

presentence report (“PSR”) indicated that he reentered the country three times. See

United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc) (court

may rely on undisputed facts in PSR at sentencing).




                                           2                                     12-10405
      Rodriguez-Santes also contends that his sentence is substantively

unreasonable under United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir.

2009), in light of the staleness of his prior conviction and other mitigating factors.

The district court did not abuse its discretion in imposing Rodriguez-Santes’s

sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The 51-month

sentence at the bottom of the Guidelines range is substantively reasonable in light

of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances,

including Rodriguez-Santes’s prior 38-month sentence for reentry after

deportation. See id.

      AFFIRMED.




                                           3                                     12-10405
