                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 27 2014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. 13-10666

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00417-MCE-1

  v.
                                                 MEMORANDUM*
FERNANDO MURGUIA-OCHOA, a.k.a.
Fernando Cruz Arreola,

               Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
               Morrison C. England, Jr., Chief District Judge, Presiding

                            Submitted August 18, 2014**

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

       Fernando Murguia-Ochoa appeals from the district court’s judgment and

challenges the 292-month sentence imposed following his guilty-plea conviction

for possession with intent to distribute at least 50 grams of methamphetamine, in


          *
             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).
violation of 21 U.S.C. § 841(a)(1), and conspiracy to possess with intent to

distribute at least 50 grams of methamphetamine, in violation of 21 U.S.C. § 846.

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

       Murguia-Ochoa contends that the district court procedurally erred at

sentencing by failing to exercise its discretion and instead implementing a

categorical rule precluding consideration of post-sentencing rehabilitation in any

sentencing decision. Because Murguia-Ochoa did not object on these grounds in

the district court, we review for plain error. See United States v. Dallman, 533

F.3d 755, 761-62 (9th Cir. 2008). It was not plain error affecting substantial rights

for the district court to conclude that defendants like Murguia-Ochoa do not show

rehabilitation by refraining from criminal activity while their imprisonment

prevents them from committing the types of crimes they have committed in the

past. See Gall v. United States, 552 U.S. 38, 49-50 (2007) (recognizing that the

Sentencing Guidelines are the initial starting point and benchmark at sentencing,

but that a sentencing judge “must make an individualized assessment based on the

facts presented”); cf. United States v. Miller, 722 F.2d 562, 565 (9th Cir. 1983)

(“When a court establishes a broad policy based on events unrelated to the

individual case before it, no discretion has been exercised.”) (emphasis

added).

                                          2
      Murguia-Ochoa also contends that the 292-month sentence, at the bottom of

the applicable Sentencing Guidelines range, is substantively unreasonable because

his career offender predicate offenses are stale and because he has been

rehabilitated since his original sentencing. The sentence is not substantively

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

circumstances, including Murguia-Ochoa’s repeated criminal history, the

extremely large quantity of methamphetamine involved in the offense, and any

evidence of his post-sentencing conduct. See Gall v. United States, 552 U.S. 38,

51 (2007); United States v. Valencia–Barragan, 608 F.3d 1103, 1109 (9th

Cir.2010) (distinguishing Amezcua-Vasquez based on the recency of the

appellant’s criminal history and the greater need to protect the public); cf. Pepper

v. United States, 131 S. Ct. 1229 (2011).

      AFFIRMED.




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