United States v. Adrian Waldo-Ramirez , 464 F. App'x 656 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 30 2011
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. 11-50180
Plaintiff - Appellee, D.C. No. 3:10-cr-04488-GT
v.
MEMORANDUM *
ADRIAN WALDO-RAMIREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Adrian Waldo-Ramirez appeals from the 21-month sentence imposed
following his guilty-plea conviction for attempted entry after deportation, in
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
*
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).
Waldo-Ramirez first 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) (emphasis
added). In any event, in light of Waldo-Ramirez’s criminal history, the court did
not err in denying the departure. See U.S.S.G. § 2L1.2 cmt. n.8.
Waldo-Ramirez next contends that his sentence is substantively
unreasonable in view of his cultural assimilation. In light of the totality of the
circumstances and the 18 U.S.C. § 3553(a) sentencing factors, Waldo-Ramirez’s
within-Guidelines sentence is substantively reasonable. See Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Rodriguez-Rodriguez, 441 F.3d 767, 770
(9th Cir. 2006).
AFFIRMED.
2 11-50180