NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 26 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-50192

Plaintiff-Appellee, D.C. No. 3:21-cr-01011-LAB-1 v. MAYOLO VARGAS-VILLANUEVA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Submitted May 17, 2022** Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.

Mayolo Vargas-Villanueva appeals from the district court’s judgment and challenges the 37-month sentence imposed following his guilty-plea conviction for attempted 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.

*

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).

Vargas-Villanueva contends that his within-Guidelines sentence is substantively unreasonable because the district court’s application of a ten-level enhancement under U.S.S.G. § 2L1.2(b)(2)(A) resulted in a Guidelines range that, while correct, overemphasized his criminal history. The district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). In light of the 18 U.S.C. § 3553(a) factors and the totality of the circumstances, particularly Vargas-Villanueva’s immigration and criminal history, the sentence is substantively reasonable. See Gall, 552 U.S. at 51; United States v. Gutierrez- Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (“The weight to be given the various factors in a particular case is for the discretion of the district court.”). Contrary to Vargas-Villanueva’s contention, the record reflects that the court considered the mitigating factors, including the age of the underlying conviction that resulted in the ten-level enhancement, and adequately explained its determination that a within-Guidelines sentence was warranted in light of Vargas-Villanueva’s multiple attempts to reenter the United States unlawfully in a short period of time. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc).

To the extent Vargas-Villanueva challenges the separate sentence imposed upon revocation of probation, we do not reach this claim because Vargas- Villanueva did not appeal the revocation judgment.

AFFIRMED.

2 21-50192