NOT FOR PUBLICATION FILED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