United States v. Jose Zaines-Vargas

FILED
NOT FOR PUBLICATION AUG 01 2013
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. 12-50037
Plaintiff - Appellee, D.C. No. 3:10-cr-03890-BEN
v.
MEMORANDUM *
JOSE ZAINES-VARGAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Jose Zaines-Vargas appeals from the district court’s judgment and
challenges the 51-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).
Zaines-Vargas contends that the district court abused its discretion by failing
to depart downward on the basis of his cultural assimilation. Our review of a
district court’s exercise of discretion to depart or vary on the basis of cultural
assimilation is subsumed in our review of whether the court imposed a
substantively reasonable sentence. See United States v. Ellis, 641 F.3d 411, 421-22
(9th Cir. 2011). The court did not abuse its discretion in imposing Zaines-Vargas’s
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The within-
Guidelines sentence is substantively reasonable in light of the totality of the
circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a),
including the need to deter and promote respect for the law. See id.
Zaines-Vargas contends that the district court erred by applying a 16-level
enhancement under U.S.S.G. § 2L1.2 because his prior conviction for robbery, in
violation of California Penal Code § 211, does not qualify as a crime of violence.
This contention is foreclosed, see United States v. Flores-Mejia, 687 F.3d 1213,
1215-16 (9th Cir. 2012), and we decline Zaines-Vargas’s request that we seek en
banc review of this issue.
Zaines-Vargas’s contention that Almendarez-Torres v. United States, 523
U.S. 224 (1998), was overruled by Nijhawan v. Holder, 557 U.S. 29 (2009), is
foreclosed. See United States v. Valdovinos-Mendez, 641 F.3d 1031, 1036 (9th
Cir. 2011).
AFFIRMED.
2 12-50037