Opinion
No. 09-50290.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed April 19, 2010.
Rebecca Suzanne Kanter, Assistant U.S., Southern District of California, San
Diego, CA, for Plaintiff-Appellee.
Gregory Thomas Murphy, Esquire, Trial, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, William Q. Hayes, District Judge, Presiding. D.C. No. 3:08-am)2523-WQH.
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jesus Gonzalez-Mendoza appeals from the 60-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
Gonzalez-Mendoza contends that the district court procedurally erred by failing to adequately explain the sentence and by not responding to his non-frivolous arguments in mitigation. The record reflects that the district court carefully considered the 18 U.S.C. § 3553(a) sentencing factors, including Gonzalez-Mendoza's arguments in mitigation, before concluding that the circumstances were insufficient to warrant a sentence below the one imposed. The district court did not procedurally err in fashioning the sentence. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
Gonzales-Mendoza also contends that the sentence imposed is substantively unreasonable because the prior aggravated felony conviction used to impose a 16-level enhancement to his base offense level was remote in time, unrelated to the instant offense, and already accounted for in his criminal history score. This argument lacks merit. Cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir. 2009); see also United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (per curiam). The sentence is substantively reasonable under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).