United States v. Joaquin Basurto-Espino , 398 F. App'x 249 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 04 2010
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. 10-30016
Plaintiff - Appellee, D.C. No. 2:09-cr-02046-EFS
v.
MEMORANDUM *
JOAQUIN BASURTO-ESPINO,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Joaquin Basurto-Espino appeals from the 57-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 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).
Basurto-Espino contends that his sentence is substantively unreasonable. In
light of the totality of the circumstances, the sentence, which is below the
Guidelines range, is substantively reasonable. See United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc).
Basurto-Espino’s argument that U.S.S.G. § 2L1.2 should not be used both to
enhance his sentence and to calculate his criminal history has been rejected by this
court. See United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009).
Basurto-Espino concedes that his contention that the district court
erroneously imposed a sentence above the statutory maximum is foreclosed. See
United States v. Bolanos-Hernandez, 492 F.3d 1140, 1148 (9th Cir. 2007).
AFFIRMED.
2 10-30016