                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 22 2010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. 10-30106

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00104-RFC-1

  v.
                                                 MEMORANDUM *
ANTHONY RODRIGUEZ,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Montana
                 Richard F. Cebull, Chief District Judge, Presiding

                     Argued and Submitted December 6, 2010
                              Seattle, Washington

Before: BEEZER, O’SCANNLAIN, and PAEZ, Circuit Judges.

       Anthony Rodriguez appeals the sentence imposed by the district court for

two counts of distribution of methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1). Rodriguez argues that the district judge erred by applying a career

offender enhancement based in part on an offense he committed when he was 17



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
years old. The facts of this case are known to the parties. We do not repeat them.

      We review sentencing decisions, “whether inside or outside the Guidelines

range,” for abuse of discretion. Gall v. United States, 552 U.S. 38, 49 (2007).

First, we “ensure that the district court committed no significant procedural error.”

Id. at 51. Then, applying an abuse-of-discretion standard, we “consider the

substantive reasonableness of the sentence” based on “the totality of the

circumstances.” Id. We do not apply a presumption of reasonableness for

sentences within the Guidelines range, but we recognize that a correctly calculated

Guidelines sentence “‘will usually be reasonable.’” United States v. Carty, 520

F.3d 984, 994 (9th Cir. 2008) (en banc) (quoting Rita v. United States, 551 U.S.

338, 351 (2007)).

      We find no procedural error in the district court’s analysis. As required, the

district court correctly calculated Rodriguez’s Guidelines sentence, considered

each of Rodriguez’s arguments, and imposed a sentence that the court found

necessary based on the factors in 18 U.S.C. § 3553(a). See Carty, 520 F.3d at 991

(outlining the framework for sentencing). As Rodriguez concedes, the district

court’s designation of Rodriguez as a career offender falls squarely within the

Guidelines because Rodriguez was convicted of deliberate homicide as an adult

under Montana law. See U.S. Sentencing Guidelines Manual §§ 4B1.1(a), 4B1.2


                                          2
& cmt. n.1.

      Further, the district court did not impose a substantively unreasonable

sentence in this case. Rodriguez argues that the district court should have

categorically rejected the career enhancement based on potential sentencing

disparities and other policy reasons. Rodriguez correctly notes that a district court

may categorically reject a Guidelines provision because of a policy disagreement.

See Spears v. United States, 129 S. Ct. 840, 843 (2009). But we cannot say that the

district court was required to reject the Guidelines sentence in this case.

      We find no evidence that the district court abused its discretion by rejecting

Rodriguez’s policy arguments and imposing a sentence within the Guidelines. The

court explicitly considered Rodriguez’s arguments but rejected them based on

Rodriguez’s criminal history, which continued well into adulthood. Although

courts must consider unwarranted sentencing disparities under 18 U.S.C.

§ 3553(a)(6), “sentencing disparity is only one factor a court considers in crafting

an individualized sentence under § 3553(a).” United States v. Treadwell, 593 F.3d

990, 1012 (9th Cir. 2010). In light of all the § 3553(a) factors, the district court

reasonably concluded that a sentence of 300 months was necessary.

      AFFIRMED.




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