United States of America v. Mayolo Vargas-Villanueva

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAYOLO VARGAS-VILLANUEVA,
Defendant-Appellant.
No. 21-50192
D.C. No. 3:21-cr-01011-LAB-1
MEMORANDUM*
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).
FILED
MAY 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 21-50192
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.

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