NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 21 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50242

Plaintiff-Appellee, D.C. No. 3:17-cr-00383-BEN

v.

NOE GARCIA-LIMA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

Noe Garcia-Lima appeals from the district court’s judgment and challenges

the 48-month sentence and 3-year term of supervised release 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). Garcia-Lima contends that the district court procedurally erred by failing to

respond to his non-frivolous mitigation arguments and sufficiently explain its

substantial upward variance. The record reflects that the court considered and

responded to Garcia-Lima’s mitigation arguments at the sentencing hearing. The

court made clear that, notwithstanding those arguments, it believed that an above-

Guidelines sentence was warranted in light of Garcia-Lima’s criminal and

immigration history. In particular, the court noted that a sentence higher than

Garcia-Lima’s previous 41-month sentence for an immigration offense was

warranted. The court also discussed the 18 U.S.C. § 3553(a) sentencing factors,

noting in particular its concern for deterrence, respect for the law, and protection of

the public. The court satisfied its procedural obligations. See Rita v. United

States, 551 U.S. 338, 356-59 (2007); United States v. Vanderwerfhorst, 576 F.3d

929, 937-38 (9th Cir. 2009).

Garcia-Lima also contends that the district court procedurally erred by

failing to consider the Guidelines’ recommendation that no term of supervised

release be imposed for a deportable alien. See U.S.S.G. § 5D1.1(c). The court did

not plainly err. See United States v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008).

The record makes clear that, even if the court had explicitly acknowledged the

Guidelines provision at issue, it would have imposed the same three-year term of

supervised release given its concerns about Garcia-Lima’s failure to be deterred

2 17-50242 and the danger he poses to the public. See U.S.S.G. § 5D1.1 cmt. n.5; Dallman,

533 F.3d at 762 (no plain error where a defendant cannot a show “a reasonable

probability that he would have received a different sentence” absent the alleged

error).

AFFIRMED.

3 17-50242