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NOT FOR PUBLICATION.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 District of Arizona. D.C. No. 2:12-cr-00408-FJM. Frederick J. Martone, District Judge, Presiding.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Fredrick A. Cocio, Esquire, Assistant U.S. Attorney, USYU-OFFICE OF THE U.S. ATTORNEY, Yuma, AZ.
For JESUS VENEGAS-LARES, Defendant - Appellant: Patrick Edward McGillicuddy, I, Esquire, Attorney, LAW OFFICES OF PATRICK E. McGILLICUDDY, Phoenix, AZ.
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jesus Venegas-Lares appeals from the district court's judgment and challenges the 77-month sentence imposed following his guilty-plea conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Venegas-Lares contends that the district court procedurally erred by failing to address his argument that he was entitled to a variance because his prior felony conviction that resulted in a 16-level sentencing enhancement was different in kind and seriousness from other crimes of violence that trigger the same enhancement. We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The record reflects that the district court entertained Venegas-Lares's arguments and adequately explained the sentence. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc)
Venegas-Lares also argues that his sentence is substantively unreasonable because the district court should have granted him a cultural assimilation departure and varied downward to avoid creating a unwarranted sentencing disparity between him and defendants with more violent and dangerous prior felony convictions. Our review of a district court's exercise of discretion to depart or vary on the basis of cultural assimilation is limited to determining whether the court imposed a substantively reasonable sentence. See United States v. Vasquez-Cruz, 692 F.3d 1001, 1005-08 (9th Cir. 2012), cert. denied, 134 S.Ct. 76, 187 L.Ed.2d 60, 2013 WL 1841816 (U.S. 2013). The district court did not abuse its discretion in imposing Venegas-Lares's sentence. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The sentence at the bottom of the Guidelines range is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including Venegas-Lares's extensive criminal history, the need to afford adequate deterrence, and to protect the public. See id.; see also U.S.S.G. § 2L1.2 cmt. n.8 (" [A cultural assimilation] departure should be considered only . . . [where it] is not likely to increase the risk to the public from further crimes of the defendant." ).
AFFIRMED.