                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 11 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-50118

               Plaintiff - Appellee,              D.C. No. 3:12-cr-04992-LAB-1

  v.
                                                  MEMORANDUM*
MARIO RAYMOND FERNANDEZ,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                           Submitted December 18, 2013**
                              San Francisco, California

Before:        HUG, FARRIS, and LEAVY, Circuit Judges.

       Mario Raymond Fernandez appeals from the district court’s judgment and

challenges the 36-month sentence imposed following his guilty-plea conviction for

transportation of illegal aliens and aiding and abetting, in violation of 8 U.S.C. §


          *
             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).
1324(a)(1)(A)(ii) and (v)(II). We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      Fernandez contends that the district court imposed a substantively

unreasonable sentence because it varied above the Sentencing Guidelines based on

an erroneous inference that he influenced his co-defendant to become involved in

the offense. To the extent Fernandez challenges the district court’s factfinding and

raises a due process issue, we review for plain error because he did not raise these

issues in the district court. See United States v. Christensen, 732 F.3d 1094, 1101,

1106 (9th Cir. 2013); see also Gall v. United States, 552 U.S. 38, 51 (2007)

(characterizing the selection of a sentence based on erroneous facts as a procedural

error). We find no plain error affecting substantial rights. See Christensen, 732

F.3d at 1101-02.

      Fernandez suggests that the district court violated his right to remain silent

because the court commented that he had neither admitted nor denied influencing

Montano to get involved in the offense. There was no error because the court was

not drawing an adverse inference from Fernandez’s silence, but instead was

discussing whether there was additional evidence to confirm or counter other

evidence concerning whether Fernandez had influenced his co-defendant. Cf.

United States v. Romero-Rendon, 220 F.3d 1159, 1163 n.4 (9th Cir. 2000).


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      Fernandez contends that the 36-month sentence is substantively

unreasonable because the district court overstated the need to protect the public and

because his participation in a GED program and drug treatment program while in

prison will adequately address his motives to offend and therefore will address any

concerns about the need for deterrence. We review for abuse of discretion,

examining the sentence in light of the totality of the circumstances and the 18

U.S.C. § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 51 (2007). The

district court did not abuse its discretion. The above-Guidelines sentence is

substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality

of the circumstances, including Fernandez’s history of drug abuse and failed drug

treatment and his history of smuggling aliens even after serving a total of 35

months in prison in connection with a previous conviction for transporting aliens.

See Gall, 552 U.S. at 51; see also United States v. Gutierrez-Sanchez, 587 F.3d

904, 908-09 (9th Cir. 2009) (recognizing that the “weight to be given the various

factors in a particular case is for the discretion of the district court” and holding

that the district court did not place undue weight on need for deterrence where

defendant repeatedly committed immigration offenses); United States v. Higuera-

Llamos, 574 F.3d 1206, 1211-12 (9th Cir. 2009) (recognizing that it was proper to

impose a greater sentence in order to protect the public from defendant’s proven


                                            3
willingness to re-offend and that it was proper when determining sentence for new

immigration offense to consider whether a sentence for a prior immigration offense

had served as an adequate deterrent).

      AFFIRMED.




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