                                                                            FILED
                            NOT FOR PUBLICATION                             FEB 27 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10260

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00358-WBS

  v.
                                                 MEMORANDUM*
JOSE OLIVERA ZAPIEN,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                           Submitted February 18, 2014**

Before:        ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

       Jose Olivera Zapien appeals from the district court’s judgment and

challenges the 121-month sentence imposed following his guilty-plea conviction

for possession with intent to distribute methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1). 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).
      Zapien contends that the district court erred at sentencing by relying on a

clearly erroneous fact, namely, that his codefendants were involved only with

marijuana and not with methamphetamine. We review for plain error. See United

States v. Burgum, 633 F.3d 810, 812 (9th Cir. 2011). Zapien’s argument fails

because he has not established a reasonable probability that his sentence would

have been different absent the error. See United States v. Dallman, 533 F.3d 755,

762 (9th Cir. 2008).

      Zapien also contends that his sentence is substantively unreasonable in light

of the disparities between his sentence and those of his codefendants. The district

court did not abuse its discretion in imposing the sentence. See Gall v. United

States, 552 U.S. 38, 51 (2007). The low-end Guidelines sentence is substantively

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

sentencing factors. See id.

      AFFIRMED.




                                          2                                   13-10260
