United States v. Serrano-Guerrero , 383 F. App'x 663 ( 2010 )

MEMORANDUM ^**

Omar Angel Serrano-Guerrero appeals from the 86-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Serrano-Guerrero contends that the district court procedurally erred at sentencing by: 1) failing to consider all of the 18 U.S.C. § 3553 factors; 2) presuming that the Guidelines range was reasonable; and 3) failing to adequately address his mitigating arguments. The record reflects that the district court did not procedurally err. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc).

Serrano-Guerrero also contends that the sentence is substantively unreasonable in light of the district court’s failure to depart downward based on Serrano-Guerrero’s lost opportunity to serve his federal sentence concurrent to a state sentence. The district court did not abuse its discretion by declining to impose a lower sentence on this basis. See id. at 993. Serrano-Guerrero also contends, for the first time on appeal, that the sentence is substantively unreasonable because the Guidelines range is based upon a 16-level enhancement for a relatively stale and minor drug trafficking offense. In light of the totality of the circumstances, the within-Guidelines sentence is substantively reasonable. See id.; cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir.2009).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.