United States v. Bahena-Carreno

FILED
UNITED STATES COURT OF APPEALS JUN 04 2012
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
UNITED STATES OF AMERICA, No. 11-50160
Plaintiff - Appellee, D.C. No. 3:10-cr-01915-JAH
Southern District of California,
v. San Diego
GUALBERTO BAHENA-CARRENO,
ORDER
Defendant - Appellant.
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
We replace the memorandum disposition, filed January 27, 2012, with a new
memorandum disposition filed contemporaneously herewith. As amended,
Gualberto Bahena-Carreno's petition for panel rehearing is denied. No further
petitions for rehearing shall be entertained.
FILED
NOT FOR PUBLICATION JUN 04 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50160
Plaintiff - Appellee, D.C. No. 3:10-cr-01915-JAH
v.
MEMORANDUM *
GUALBERTO BAHENA-CARRENO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted January 17, 2012**
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
Gualberto Bahena-Carreno appeals from the 36-month sentence imposed
following his guilty-plea conviction for attempted entry after deportation, in
violation of 8 U.S.C. y 1326. We have jurisdiction under 28 U.S.C. y 1291, and
*
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).
we affirm.
Bahena-Carreno contends that the district court erred in denying a
downward departure for cultural assimilation because the court misapplied the
parameters for granting a departure and relied on clearly erroneous facts. The
record reflects that Bahena-Carreno did not request a downward departure for
cultural assimilation.
The record is clear that the court entertained Bahena-Carreno's arguments as
part of its consideration of the 18 U.S.C. y 3353(a) sentencing factors, granted a
downward variance based on the staleness of Bahena-Carreno's prior conviction,
and explained why a further variance was not warranted. See United States v.
Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).
Bahena-Carreno also contends that his sentence is substantively
unreasonable. In light of the totality of the circumstances and the section 3553(a)
sentencing factors, the sentence is substantively reasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2 11-50160