United States v. Victor Vega-Soto , 540 F. App'x 788 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 03 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50271
Plaintiff - Appellee, D.C. No. 3:12-cr-00304-MMA
v.
MEMORANDUM *
VICTOR VEGA-SOTO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted September 24, 2013 **
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.
*
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).
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.
2 12-50271