                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 01 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-30236

               Plaintiff - Appellee,             D.C. No. 1:10-cr-30010-PA

  v.
                                                 MEMORANDUM *
JOSE EMILIANO DIAZ-LARA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                              Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Jose Emiliano Diaz-Lara appeals from the district court’s judgment and

challenges the 168-month sentence imposed following his guilty-plea conviction

for conspiracy to distribute and possession with intent to distribute more than 50

grams of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),

          *
             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).
(b)(1)(A)(viii), and 846. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      Diaz-Lara contends that the district court procedurally erred by failing to

explain adequately why it declined to grant a downward variance and by failing to

address Diaz-Lara’s argument regarding his comparative culpability. We review

for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th

Cir. 2010), and find none. The district court entertained the parties’ arguments,

concluded that the 18 U.S.C. § 3553(a) sentencing factors distinguished Diaz-

Lara’s case from that of his codefendant, and adequately explained Diaz-Lara’s

sentence.

      Diaz-Lara also contends that his sentence is substantively unreasonable. The

district court did not abuse its discretion in imposing Diaz-Lara’s sentence. See

Gall v. United States, 552 U.S. 38, 51 (2007). In light of the totality of the

circumstances and the section 3553(a) sentencing factors, the sentence at the

bottom of the Guidelines range is substantively reasonable. See id.

      We decline to consider Diaz-Lara’s ineffective assistance of counsel claim

on direct appeal because the record is insufficiently developed. See United States

v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003). Diaz-Lara’s request for




                                           2                                     12-30236
appointment of counsel is denied without prejudice to refiling in the district court

in the event he files a motion under 28 U.S.C. § 2255.

      Diaz-Lara’s motion to strike the government’s supplemental excerpt of

record is denied.

      AFFIRMED.




                                          3                                    12-30236
