United States v. Bay Mendivil-Silva

MEMORANDUM

Bay Ignacio Mendivil-Silva appeals from the 78-month sentence imposed following his guilty-plea conviction for importation of cocaine, in violation of 21 U.S.C. §§ 952 (a), 960(a)(1) and 960(b)(l)(A)(ii), and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841 (a)(1) and (b)(l)(A)(ii)(II). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Mendivil-Silva contends that remand is required because the district court did not recognize its discretion to vary from the advisory sentencing Guidelines range pursuant to Kimbrough v. United States, 552 U.S. 85 , 128 S.Ct. 558 , 169 L.Ed.2d 481 (2007). The record belies that contention. The district court understood that had discretion to vary but concluded that a within-Guidelines sentence was appropriate for Mendivil-Silva.

To the extent that Mendivil-Silva also contends that his sentence was substantively unreasonable, the contention fails. In light of the totality of the circumstances and the sentencing factors set forth in 18 U.S.C. § 3553 (a), the 78-month sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 , 128 S.Ct. 586 , 169 L.Ed.2d 445…