United States v. Melecio Aldana-Ortiz , 384 F. App'x 633 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 18 2010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. 09-50276
Plaintiff - Appellee, D.C. No. 3:09-CR-01051-LAB
v.
MEMORANDUM *
MELECIO ALDANA-ORTIZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Melecio Aldana-Ortiz appeals from the 68-month sentence imposed
following his guilty-plea conviction for attempted entry after deportation, in
*
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).
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
Aldana-Ortiz contends that the district court procedurally erred by: (1)
failing to respond to his non-frivolous argument that a sixteen-level enhancement,
under U.S.S.G. § 2L1.2, was sufficient to compensate for any underrepresentation
in his criminal history score, and (2) focusing on the need for deterrence to the
exclusion of the other 18 U.S.C. § 3553(a) sentencing factors. The record reflects
that the district court did not procedurally err. See United States v. Carty, 520 F.3d
984, 992-93 (9th Cir. 2008) (en banc).
Aldana-Ortiz further contends that his sentence is substantively
unreasonable under United States v. Amezcua-Vasquez, 567 F.3d 1050, 1056 (9th
Cir. 2009), because the sixteen-level enhancement was predicated on a “stale”
conviction. In light of the totality of the circumstances of this case and the
§ 3553(a) sentencing factors, the sentence is substantively reasonable. See United
States v. Valencia-Barragan, 600 F.3d 1132, 1137 (9th Cir. 2010); United States v.
Higuera-Llamos, 574 F.3d 1206, 1211-12 (9th Cir. 2009); cf. Amezcua-Vasquez,
567 F.3d at 1055-57.
AFFIRMED.
2 09-50276