United States v. Bernardo Deleon-Torres ( 2012 )

FILED
NOT FOR PUBLICATION MAY 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50302
Plaintiff - Appellee, D.C. No. 3:10-cr-03751-BTM
v.
MEMORANDUM *
BERNARDO DELEON-TORRES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Bernardo Deleon-Torres appeals from the 72-month sentence imposed
following his bench-trial 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.
*
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).
§ 1291, and we affirm.
Deleon-Torres contends that the district court erred in calculating the
applicable Guidelines range in that it improperly denied a downward departure for
cultural assimilation. This argument fails because “it is the pre-departure
Guidelines sentencing range that the district court must correctly calculate.”
United States v. Evans-Martinez, 611 F.3d 635, 643 (9th Cir. 2010). In any event,
in light of Deleon-Torres’s criminal history, the court did not err in denying the
departure. See U.S.S.G. § 2L1.2 cmt. n.8.
Deleon-Torres also contends that his sentence is substantively unreasonable
in light of his cultural assimilation. The below-Guidelines sentence is
substantively reasonable in light of the totality of the circumstances and the 18
U.S.C. § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 51
(2007).
Finally, Deleon-Torres concedes that his contentions that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), should be limited to its
facts, that Almendarez-Torres has been overruled; and that 8 U.S.C. § 1326(b) is
unconstitutional, are foreclosed by Ninth Circuit precedent. See United States v.
Salazar-Lopez, 506 F.3d 748, 751 n.3 (9th Cir. 2007).
AFFIRMED.
2 11-50302