NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. BILLY MIRANDA FLORES,

Defendant

- Appellant. No. 14

- 301 30 D.C. No. 3:09

- cr - 05810

- RBL

MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding Submitted March 15, 2016 ** Before: GOODWIN, LEAVY , and CHRISTEN, Circuit Judges. Billy Miranda Flores appeals the 240

- month s entence imposed upon remand. We have jurisdiction under 28 U.S.C. § 1291

. W e affirm , but remand to correct the judgment.
Flores first contends that the district court violated his Sixth Amendment

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

MAR 21 2016 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 14

- 30130

rights under Alleyne v. United States , 133 S. Ct. 2151 (2013) , by relying on judicial factfinding to determine his base offense level and sentencing enhancements

. This argument fails because the court’s findings affected neither the statutory maximum sentence nor any mandatory minimum sentence applicable to Flores’ s conviction s . S

ee United States v. Vallejos , 742 F.3d 902, 906

- 07 (9th Cir. 2014). Flores next contends that the district court erred by making several factual determinations by a preponderan ce of the evidence, rather than clear and convincing evidence

. To the extent that this claim is directed to the district court’s drug quantity findings, this court has already rejected Flores’s argument

. See United States v. Flores , 725 F.3d 1028, 1035 (9th Cir. 2 013). To the extent that the argument is directed to the district court’s findings in support of the sentencing enhancements, Flores has not shown that the enhancements had an

“ extremely disproportionate effect ” on his sentence such that the government was required to satisfy a higher standard of proof

. See United States v. Dare , 425 F.3d 634, 642 (9th Cir. 2005).
Flores next contends that the district court procedurally erred by failing to
consider and address his sentencing a r guments , and imposed a substantively
unreasonable sentence

. The record reflects that the district court expressly3 14

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considered Flores’ s mitigating arguments and sufficiently explained the sentence. See United States v. Carty , 520 F.3d 984, 992 (9th Cir. 2008) (en banc)

. Furthermore, the below

- Guidelines sentence is substantively reasonable in light of
the 18 U.S.C. § 3553(a) sentencing factors and th e totality of the circumstances

. See Gall v. United States , 552 U.S. 38, 51 (2007 ). We decline to consider Flores’ s claim that he is entitled to a sentence
reduction because a

ny such motion should be brought in the district court in the
first instance. See 18 U.S.C. § 3582(c)(2). Flores’ s pro se motion to file a pro se reply brief is granted

. We agree with the government that F lores waived his challenge to the enhancement for use of a
minor by affirmatively declining to call Shelbie Ingham as a witness at his resentencing hearing

. See Un ited States v. Olano , 507 U.S. 725, 733 (1993). Flores’s remaining pro se arguments are without merit. Finally, the record reflects, and the parties agree, that the district court erroneously imposed a forfeiture order in the amen ded judgment. We reject Flores’s contention that this error requires a resentencing hearing. Instead, we
remand with instructions to the district court to strike the forfeiture order. See
United States v. Rivera

- Sanchez , 222 F.3d 1057, 1061

- 62 (9th Cir. 2000)

.4 14

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The government’s motion for judicial notice is granted. Flores’s pro se request to file a supplemental brief, filed on March 11, 2016,
is denied. AFFIRMED; REMANDED to correct the judgment.