                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 23 2011

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10451

              Plaintiff - Appellee,              D.C. No. 2:09-cr-0200 EJG

  v.
                                                 MEMORANDUM*
ANDRES URQUIDEZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Edward J. Garcia, District Judge, Presiding

                             Submitted May 9, 2011**
                             San Francisco, California

Before: D.W. NELSON and W. FLETCHER, Circuit Judges, and DUFFY, 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 Kevin Thomas Duffy, District Judge for the U.S.
District Court for Southern New York, New York, sitting by designation.
      Appellant Andres Urquidez (“Appellant”) appeals from an order of the

district court sentencing Appellant to 24 months imprisonment after he pled guilty

to possession of a firearm by a prohibited person in violation of 18 U.S.C. §

922(g)(1). Appellant asserts that the district court committed procedural error in

the imposition of his sentence and that his sentence, although 13 months less than

the bottom of the Guideline Sentencing Range, is substantively unreasonable. For

the following reasons, we AFFIRM the district court’s judgment.

      We review all sentencing decisions by a district court for abuse of discretion.

Gall v. United States, 552 U.S. 38, 41 (2007). First, we ensure that the district

court has not committed a “significant procedural error.” Id. at 51. Next, we

consider the substantive reasonableness of the sentence, where we “take into

account the totality of the circumstances, including the extent of any variance from

the Guidelines range.” Id. The district court’s application of the Sentencing

Guidelines is reviewed de novo. United States v. Cruz-Gramajo, 570 F.3d 1162,

1167 (9th Cir. 2009). We review the district court’s factual findings for clear error.

Id.




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          I. The District Court Did Not Commit Procedural Error

      Appellant asserts that the district court considered clearly erroneous facts in

the imposition of his sentence, namely 1) Appellant’s involvement in gangs and 2)

the nature of Appellant’s conduct and involvement in the WinCo incident. Second,

Appellant contends that the district court did not adequately explain how the

sentence reflects all of the Section 3553(a)(2) factors. We address each of these

arguments in turn.

   A. The District Court Did Not Consider Clearly Erroneous Facts

             1.      Appellant’s Association with Gangs

      While Appellant denied he is or ever has been associated with a gang, the

record establishes that Appellant was seen associating with validated gang

members or associates on at least three separate occasions, as documented by law

enforcement. After reviewing the materials submitted by both parties,1 the district

judge properly exercised his discretion in weighing the evidence before him to find

that “[t]he fact remains, however, he obviously runs with gang members and local


      1
        Appellant asserts that the district court may not rely on “unsupported
conclusions” or “brief and cryptic references” in finding that Appellant continually
associated with gang members. However, Appellant’s own submission contains a
transcript from an interview that discusses the incident where a law enforcement
officer observed a picture on Appellant’s cell phone with Appellant flashing a
Norteño gang sign and brandishing a firearm, the factual accuracy of which was
never refuted by Appellant.
                                          3
law enforcement considers him at least a Norteño gang associate . . . .” Being that

it is not this Court’s “duty to reweigh the evidence presented to the trial court,”

United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010), we do not find the

district court’s factual finding so “clearly erroneous” as to constitute a procedural

error. See United States v. Ressam, 629 F.3d 793, 825 (9th Cir. 2010).

             2.     The Nature of Appellant’s Conduct Underlying His Prior

                    Conviction

      Appellant contends that “[i]t is also clear that the district court’s references

to [Appellant’s] involvement in the WinCo incident constituted a finding that he

participated in a robbery.” The record from the sentencing hearing indicates that

while the district court was initially mistaken, both the defense and prosecution

corrected the district court, before Appellant’s sentence was imposed, that

Appellant’s prior conviction was for Assault with a Deadly Weapon. Further, the

Pre-Sentence Report (“P.S.R.”), which the district court explicitly references

throughout the sentencing proceeding, explains the facts underlying Appellant’s

prior conviction. However, after being apprised of the exact nature of the

circumstances surrounding Appellant’s prior conviction, the district court still

found that “[t]he defendant pled guilty to [Assault with a Deadly Weapon] then

and was so adjudicated for his part in the thefts and the felonious assault as

                                           4
[Appellant] helped his associates escape.” Thus, the district court's factual findings

of the circumstances of Appellant’s prior conviction were not “illogical,

implausible, or without support in the record.” Spangle, 626 F.3d at 497.2

    B. The District Court Adequately Explained The Section 3553(a) Factors

      While Appellant claims that the district court only “cursorily invoked the

3553(a)(2) factors,” “‘[t]he district court need not tick off each of the § 3553(a)

factors to show that it has considered them.’” Ressam, 629 F.3d at 826 (quoting

United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc)). While “the

district court still is required to articulate the reasons for the extent of the departure

in sufficiently specific language to allow appellate review,” United States v.

Ellsworth, 456 F.3d 1146, 1153 n.3 (9th Cir. 2006) (internal quotation marks and

citations omitted), this requirement was satisfied here, as the district court noted

Appellant’s “chaotic upbringing and lack of youthful guidance,” and expressly

adopted the P.S.R.’s findings (which outline the mitigating circumstances

surrounding Appellant’s prior conviction) in recommending a downward variance.




2
 As Appellant concedes, pursuant to Custis v. United States, 511 U.S. 485 (1994),
he may not collaterally attack the circumstances surrounding his prior conviction.
                                            5
     II. Appellant’s Lower Than Guideline Range 24 Month Sentence is Not
Substantively Unreasonable

      Appellant argues that it was substantively unreasonable for the district court

to sentence Johnson to 24 months’ imprisonment because Appellant is

“demonstrably innocent of the felony conduct in connection with the predicate

offense.” In addition, Appellant seems to argue that his youth and disputed gang

affiliation also warrant his requested split sentence and that the lower than

guideline sentence of 24 months is still “greater than necessary.”


      Here, after having extensively reviewed the evidence before it and listening

to each party’s arguments, the district court exercised its discretion in finding that

the underlying predicate conviction of assault with a deadly weapon was a serious

crime. Moreover, after the judge was corrected by the parties regarding the exact

nature of the underlying conviction, the district court still found that Appellant pled

guilty to the underlying charge and chose to surround himself with validated gang

members and possess a firearm as a prohibited person. The district court further

considered Appellant’s age, chaotic upbringing, and the mitigating circumstances

surrounding the prior conviction and granted the P.S.R.’s recommended downward

departure from the Guideline range of 37 - 44 months to 24 months. The fact that

the district court did not choose Appellant’s sentence of choice of a split sentence


                                           6
does not make his sentence substantively unreasonable. See United States v.

Whitehead, 532 F.3d 991, 993 (9th Cir. 2008).

AFFIRMED.




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