Garibay

ORDER

Our April 7, 2009 order staying further proceedings and deferring the filing of a petition for rehearing and petition for rehearing en banc is vacated. We have now reviewed the supplemental briefing filed pursuant to our April 27, 2009, order and direct the Clerk to strike the Memorandum Disposition filed March 17, 2009 and file the attached disposition. The time to file a petition for panel rehearing or petition for rehearing en banc will commence with the filing of this new disposition.

MEMORANDUM **

Luis Enrique Garibay appeals his conviction and 235-month sentence for violating the felon in possession provisions of 18 U.S.C. § 922 (g)(1). Garibay argues the district court erred when it refused to suppress a handgun discovered following his arrest, and imposed a procedurally and substantively unreasonable sentence. The parties are familiar with the facts and we do not repeat them here.

Even assuming that Garibay had standing as an overnight guest, the officers properly arrested him and subsequently made a plain view seizure of the handgun. We therefore affirm the district court’s denial of Garibay’s motion to suppress without reaching the search incident to arrest…