                                                                           FILED
                            NOT FOR PUBLICATION                            NOV 25 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 13-10599
                                                      13-10602
               Plaintiff - Appellee,
                                                 D.C. Nos. 2:12-cr-00389-GMN
  v.                                                       2:12-cr-00447-GMN

JOSE SANCHEZ-OSUNA, a.k.a. Jesus
Palacios-Burgos; JORGE JAVIER                    MEMORANDUM*
RIVERA LOPEZ,

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Gloria M. Navarro, Chief Judge, Presiding

                           Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       In these consolidated appeals, Jose Sanchez-Osuna, a.k.a. Jorge Javier

Rivera Lopez, appeals from the district court’s judgments and challenges the 51-

month sentence imposed following his guilty-plea conviction for being a deported

          *
             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).
alien found unlawfully in the United States, in violation of 8 U.S.C. § 1326; and

the 12-month-and-one-day consecutive sentence imposed upon revocation of

supervised release. We have jurisdiction under 28 U.S.C. § 1291. We dismiss

Appeal No. 13-10599, and we affirm in Appeal No. 13-10602.

      The government contends that these appeals should be dismissed based on

the appeal waiver in the parties’ plea agreement. We review de novo whether an

appellant has waived his right to appeal. See United States v. Joyce, 357 F.3d 921,

922 (9th Cir. 2004). We dismiss Appeal No. 13-10599 because the waiver covers

any appeal of Sanchez-Osuna’s within-Guidelines sentence. We decline to dismiss

Sanchez-Osuna’s challenge to his above-Guidelines revocation sentence, however,

because it is not unambiguously encompassed by the language of the waiver. See

id. at 922-23.

      In Appeal No. 13-10602, Sanchez-Osuna first contends that the district court

procedurally erred by failing to consider the 18 U.S.C. § 3583(e) sentencing factors

and by failing to explain its reasons for imposing a consecutive revocation

sentence. We review for plain error, see United States v. Valencia-Barragan, 608

F.3d 1103, 1108 (9th Cir. 2010), and find none. The record reflects that the district

court adequately considered the section 3583(e) sentencing factors. See United

States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc) (“The district court


                                          2                          13-10599 & 13-10602
need not tick off each of the [sentencing] factors to show that it has considered

them.”). Moreover, the reasons for imposing the sentence, including the

seriousness of Sanchez-Osuna’s breach of trust and the need to deter, are apparent

from the record. See id. (adequate explanation may be inferred from the record as

a whole).

      Sanchez-Osuna also contends that the consecutive revocation sentence is

substantively unreasonable. The district court did not abuse its discretion in

imposing Sanchez-Osuna’s sentence. See Gall v. United States, 552 U.S. 38, 51

(2007). The sentence is substantively reasonable in light of the section 3583(e)

sentencing factors and the totality of the circumstances, including Sanchez-Osuna’s

criminal and immigration history. See U.S.S.G. § 7B1.3(f); Gall, 552 U.S. at 51.

      Appeal No. 13-10599 DISMISSED; Appeal No. 13-10602 AFFIRMED.




                                          3                           13-10599 & 13-10602
