Opinion
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)
Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:11-cr-00206-KJM-1. Kimberly J. Mueller, District Judge, Presiding.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: William S. Wong, Assistant U.S. Attorney, USSAC - OFFICE OF THE U.S. ATTORNEY, Sacramento, CA.
For KIRBY ALLEN REYNOLDS, AKA Kirby Alan Reynolds, Defendant - Appellant: Michael Petrik, Jr., Assistant Federal Public Defender, FPDCA - FEDERAL PUBLIC DEFENDER'S OFFICE (SACRAMENTO), Sacramento, CA.
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Kirby Allen Reynolds appeals from the district court's judgment and challenges the 63-month sentence imposed following his guilty-plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Reynolds contends that the category VI criminal history substantially over-represented his criminal history and that the district court therefore abused its discretion by failing to depart under U.S.S.G. § 4A1.3(b)(1) or vary downwards. When a district court makes a decision regarding whether to depart under U.S.S.G. § 4A1.3, we do not determine whether the court correctly applied § 4A1.3, but instead determine whether the ultimate sentence was substantively reasonable. See United States v. Ellis, 641 F.3d 411, 421-22 (9th Cir. 2011); see also United States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006). We review the sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
The district court did not abuse its discretion in imposing the 63-month sentence. The sentence is not substantively unreasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors, such as the appellant's extensive criminal history, including two prior state convictions for being a felon in possession of a firearm, and the need to provide deterrence and promote respect for the law. See id.
AFFIRMED.