United States v. Roberto Sandoval

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2018 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50335 Plaintiff-Appellee, D.C. No. 3:16-cr-01694-JLS

v.

MEMORANDUM*

ROBERTO ANTONIO SANDOVAL, a.k.a. Robert Antonio Sandoval,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding

Submitted December 17, 2018** Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Robert Antonio Sandoval appeals from the district court’s judgment and challenges the 97-month sentence imposed following his guilty-plea conviction for receipt of images of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). We have jurisdiction under 28 U.S.C. § 1291. As Sandoval

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

did not object to his sentence on procedural grounds before the district court, we review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 & n.3 (9th Cir. 2010), and we affirm.

Sandoval claims the district court procedurally erred by failing to appreciate its discretion to vary downward on the basis of a policy disagreement with the United States Sentencing Guidelines, pursuant to Kimbrough v. United States, 552 U.S. 85 (2007). Sandoval also argues that the district court procedurally erred by not considering various arguments he tailored to the 18 U.S.C. § 3553(a) sentencing factors. Because the district court recognized its ability to impose a below-Guidelines sentence, yet indicated it “[did] not have, in fact, a policy disagreement with [the Guidelines],” United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011), it did not err. See United States v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011) (no procedural error where a sentencing court noted the advisory nature of the Guidelines and considered a policy-based challenge thereto).

The record reflects that the district court considered Sandoval’s § 3553(a)

arguments and adequately explained its decision to reduce his total offense level by one point and to impose a 97-month sentence. See United States v. Carty, 520 F.3d 984, 996 (9th Cir. 2008) (en banc) (no procedural error where a sentencing judge “stated that he reviewed the [sentencing] papers [and] the papers discussed the

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applicability of the § 3553(a) factors”); United States v. Daniels, 541 F.3d 915, 922 (9th Cir. 2008) (no procedural error where the presentence investigation report and the record as a whole demonstrated that the district court heard and rejected a defendant’s § 3553(a) arguments).

AFFIRMED.

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