Opinion
No. 12-50271 D.C. No. 3:12-cr-00304-MMA
2013-10-03
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VICTOR VEGA-SOTO, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Victor Vega-Soto appeals from the district court's judgment and challenges the 41-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Vega-Soto contends that the district court procedurally erred by failing to respond to his non-frivolous arguments for a below-Guidelines sentence. Because Vega-Soto did not raise this procedural objection at sentencing, we review for plain error. See United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The district court entertained Vega-Soto's mitigating arguments regarding the application of the Guidelines, as reflected in its decision to depart downward five levels, and adequately explained the sentence. See United States v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011), cert. denied, 132 S. Ct. 1941 (2012).
Vega-Soto contends that his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000), but acknowledges that Almendarez-Torres v. United States, 523 U.S. 224 (1998), remains binding precedent. See United States v. Estrada-Eliverio, 583 F.3d 669, 673 (9th Cir. 2009).
AFFIRMED.