NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10434

Plaintiff-Appellee, D.C. No. 2:17-cr-00077-JAM-1

v.

MEMORANDUM*

MARTIN GASCA ROJAS,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Martin Gasca Rojas appeals from the district court’s judgment and

challenges the 151-month sentence imposed following his guilty-plea conviction

for three counts of distribution of methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1). 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). Gasca Rojas contends that the district court procedurally erred by failing to

recognize its discretion to vary below the Sentencing Guidelines on policy

grounds, and by failing to explain its rejection of his request for a downward

variance. Contrary to the government’s waiver argument, we review both claims

for plain error, see United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en

banc), and conclude that there is none. The record reflects the district court

recognized its discretion but declined to exercise it. See United States v.

Henderson, 649 F.3d 955, 964 (9th Cir. 2011). Moreover, the district court

sufficiently explained the within-Guidelines sentence. See Rita v. United States,

551 U.S. 338, 358-59 (2007).

AFFIRMED.

2 18-10434