United States v. Gualberto Bahena-Carreno

Opinion

FILED

NOT FOR PUBLICATION JAN 27 2012

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. 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. § 1326. We have jurisdiction under 28 U.S.C. § 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. Appellant. P. 34(a)(2).

we affirm.

Bahena-Carreno contends that the district court procedurally 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 district court did not plainly err. The record does not reflect that Bahena-Carrena requested a downward departure. Moreover, the court entertained Bahena-Carreno’s arguments as part of its consideration of the 18 U.S.C. § 3553(a), 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); United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008) (defendant’s burden to demonstrate reasonable probability that sentence would have been different absent procedural error).

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