Opinion
No. 11-50089 D.C. No. 3:09-cr-01802-GT
10-27-2011
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SERAFIN HERNANDEZ-GARCIA, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, District Judge, Presiding
Serafin Hernandez-Garcia appeals from the 33-month sentence imposed following his conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Hernandez-Garcia contends that the district court improperly departed upward on the basis of criminal history when calculating his Guidelines range, and that the district court failed to provide the requisite reasoned explanation of the departure. This contention is without merit, where the record shows that district did not procedurally err and "any deviation from the applicable advisory guidelines range will be viewed as an exercise of the district court's post-Booker discretion and reviewed only for reasonableness." See United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006); see also United States v. Ellis, 641 F.3d 411, 421-22 (9th Cir. 2011) (affirming that "it is not necessary to consider whether the district court correctly applied U.S.S.G. § 4A1.3 ... [but] only whether the defendant's ultimate sentence was reasonable"). In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, the sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.