                                                                             FILED
                            NOT FOR PUBLICATION                               JUL 19 2010

                                                                          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. 08-10463

              Plaintiff - Appellee,               D.C. No. 2:07-CR-00871-ROS-1

  v.
                                                  MEMORANDUM *
HANOI BARBARO ACOSTA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Roslyn O. Silver, District Judge, Presiding

                              Submitted June 29, 2010 **

Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Hanoi Barbaro Acosta appeals from the 262-month sentence imposed

following his conviction by jury trial for transportation of a minor in interstate

commerce for prostitution, in violation of 18 U.S.C. § 2423(a) and (e). We have

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

        *
             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).
      Acosta contends that the district court erred by applying several sentencing

enhancements, and that the sentence was procedurally and substantively

unreasonable.

      This court reviews de novo the district court’s interpretation of the

sentencing guidelines. United States v. Dixon, 201 F.3d 1223, 1233, (9th Cir.

2000). This court reviews for clear error the factual findings underlying the

sentencing decision. United States v. Barnes, 125 F.3d 1287, 1290 (9th Cir. 1997).

      Acosta contends that the district court erred by failing to find certain

enhancements by clear and convincing evidence. Acosta did not make this

argument to the district court, so we review only for plain error. See United States

v. Olano, 507 U.S. 725, 730-32 (1993). Clear and convincing evidence is required

where, as here, the enhancements had a “disproportionate impact” on the sentence.

See United States v. Jordan, 256 F.3d 922, 927 (9th Cir. 2001). Here, because the

challenged enhancements added ten levels to Acosta’s offense level and more than

doubled the applicable Guidelines range, we agree that a finding by clear and

convincing evidence was required. However, a review of the record satisfies us

that, although the district court did not apply the clear and convincing standard, the

enhancements imposed on Acosta were established by clear and convincing

evidence. The district court’s sentencing determination followed a trial at which


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Acosta had the opportunity to cross-examine witnesses against him and at which

the jury made the relevant findings beyond a reasonable doubt when they found

Acosta guilty of the offense. Accordingly, the district court did not plainly err in

applying the challenged enhancements at sentencing.

      This court reviews a sentence’s reasonableness by reviewing “the district

court’s application of the Sentencing Guidelines de novo, the district court’s

application of the Sentencing Guidelines to the facts of a case for abuse of

discretion, and the district court’s factual findings for clear error.” United States v.

Grissom, 525 F.3d 691, 696 (quoting United States v. Cantrell, 433 F.3d 1269,

1279 (9th Cir. 2006)). “The sentencing judge should set forth enough to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned

basis for exercising his own legal decision[-]making authority.” Rita v. United

States, 551 U.S. 338, 356 (2007); see also 18 USC § 3553(c). Further, while

judges should state their reasons on the record, “adequate explanation in some

cases may also be inferred from the PSR or the record as a whole.” United States

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

before it the oral arguments and sentencing memoranda of both parties, as well as

the PSR, and considered the salient arguments on the record. The district court

sentenced Acosta in a procedurally sound manner.


                                            3
      “[W]hen the judge’s discretionary decision accords with the [Sentencing]

Commission’s view of the appropriate application of [18 USC] § 3353(a) in the

mine run of cases, it is probable that the sentence is reasonable.” Rita, 551 US at

351. Here the district court imposed a sentence at the low end of the advisory

Guidelines range and gave an adequate explanation for the sentence. Under the

totality of the circumstances, the sentence was substantively reasonable. See

Carty, 520 F.3d at 993.

      AFFIRMED.




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