                                                                           FILED
                            NOT FOR PUBLICATION                            APR 11 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50177

               Plaintiff - Appellee,             D.C. No. 2:12-cr-00842-DSF

  v.
                                                 MEMORANDUM*
CESAR VARELA-CRUZ, a.k.a. Cesar
Varela Cruz, a.k.a. Cesar Vrela Cruz, a.k.a.
Feliciano Sandoval Hernandez, a.k.a.
Sebastian Torres Rubio, a.k.a. Ceasar Cruz
Varela, a.k.a. Cesar Cruz Varela,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                              Submitted April 7, 2014**

Before:        TASHIMA, GRABER, and IKUTA, Circuit Judges.

       Cesar Varela-Cruz appeals from the district court’s judgment and challenges

the 77-month sentence imposed following his guilty-plea conviction for being an

          *
             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).
illegal alien found in the United States after deportation, in violation of 8 U.S.C.

§ 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm, but remand

to correct the judgment.

      Varela-Cruz contends that his sentence is substantively unreasonable

because (i) the district court gave too much weight to his offense conduct and

criminal history, to the exclusion of his mitigating factors and remaining 18 U.S.C.

§ 3553(a) sentencing factors and (ii) it creates an unwarranted sentencing disparity

between his sentence and the sentences imposed on defendants with similar

criminal histories prosecuted under the fast-track program. The district court did

not abuse its discretion in imposing Varela-Cruz’s sentence. See Gall v. United

States, 552 U.S. 38, 51 (2007). The disparity between Varela-Cruz’s sentence and

the sentences imposed under the fast-track program is not unwarranted and,

therefore, does not violate 18 U.S.C. § 3553(a)(6). See United States v. Marcial-

Santiago, 447 F.3d 715, 718-19 (9th Cir. 2006). Moreover, the sentence at the low

end of the Guidelines range is substantively reasonable in light of the section

3553(a) sentencing factors and the totality of the circumstances, including Varela-

Cruz’s extensive criminal and immigration history. See Gall, 552 U.S. at 51;

United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (the weight

to be given to the various factors in a particular case is left to the discretion of the


                                            2                                      13-50177
district court).

       Varela-Cruz next contends that the case should be remanded to conform the

written judgment to the oral pronouncement of supervised release condition

number 10. The government agrees that there is a clerical mistake in the judgment.

Because the oral pronouncement of the sentence controls when there is a conflict

between the oral pronouncement and the written judgment, we remand for the

district court to conform the judgment with the oral pronouncement of that

condition. See United States v. Allen, 157 F.3d 661, 668 (9th Cir. 1998).

       AFFIRMED; REMANDED to correct the judgment.




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