                             NOT FOR PUBLICATION                           FILED
                      UNITED STATES COURT OF APPEALS                       MAR 21 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 14-30130

              Plaintiff - Appellee,                D.C. No. 3:09-cr-05810-RBL

    v.
                                                   MEMORANDUM*
 BILLY MIRANDA FLORES,

               Defendant - Appellant.

                     Appeal from the United States District Court
                       for the Western District of Washington
                     Ronald B. Leighton, District Judge, Presiding

                              Submitted March 15, 2016**

Before:        GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.

         Billy Miranda Flores appeals the 240-month sentence imposed upon remand.

We have jurisdiction under 28 U.S.C. § 1291. We affirm, but remand to correct

the judgment.

         Flores first contends that the district court violated his Sixth Amendment

         *
             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).
rights under Alleyne v. United States, 133 S. Ct. 2151 (2013), by relying on judicial

factfinding to determine his base offense level and sentencing enhancements.

This argument fails because the court’s findings affected neither the statutory

maximum sentence nor any mandatory minimum sentence applicable to Flores’s

convictions. See United States v. Vallejos, 742 F.3d 902, 906-07 (9th Cir. 2014).

      Flores next contends that the district court erred by making several factual

determinations by a preponderance of the evidence, rather than clear and

convincing evidence. To the extent that this claim is directed to the district

court’s drug quantity findings, this court has already rejected Flores’s argument.

See United States v. Flores, 725 F.3d 1028, 1035 (9th Cir. 2013). To the extent

that the argument is directed to the district court’s findings in support of the

sentencing enhancements, Flores has not shown that the enhancements had an

“extremely disproportionate effect” on his sentence such that the government was

required to satisfy a higher standard of proof. See United States v. Dare, 425 F.3d

634, 642 (9th Cir. 2005).

      Flores next contends that the district court procedurally erred by failing to

consider and address his sentencing arguments, and imposed a substantively

unreasonable sentence. The record reflects that the district court expressly

                                           2                                       14-30130
considered Flores’s mitigating arguments and sufficiently explained the sentence.

See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

Furthermore, the below-Guidelines sentence is substantively reasonable in light of

the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances.

See Gall v. United States, 552 U.S. 38, 51 (2007).

      We decline to consider Flores’s claim that he is entitled to a sentence

reduction because any such motion should be brought in the district court in the

first instance. See 18 U.S.C. § 3582(c)(2).

      Flores’s pro se motion to file a pro se reply brief is granted. We agree with

the government that Flores waived his challenge to the enhancement for use of a

minor by affirmatively declining to call Shelbie Ingham as a witness at his

resentencing hearing. See United States v. Olano, 507 U.S. 725, 733 (1993).

Flores’s remaining pro se arguments are without merit.

      Finally, the record reflects, and the parties agree, that the district court

erroneously imposed a forfeiture order in the amended judgment. We reject

Flores’s contention that this error requires a resentencing hearing. Instead, we

remand with instructions to the district court to strike the forfeiture order. See

United States v. Rivera-Sanchez, 222 F.3d 1057, 1061-62 (9th Cir. 2000).

                                           3                                         14-30130
      The government’s motion for judicial notice is granted.

      Flores’s pro se request to file a supplemental brief, filed on March 11, 2016,

is denied.

      AFFIRMED; REMANDED to correct the judgment.




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