USA v. Heriberto Valencia, No. 09-10266 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 07 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-10266 D.C. No. 2:08-cr-01408-FJM v. HERIBERTO VALENCIA, MEMORANDUM * Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding Submitted August 23, 2010 ** Before: LEAVY, HAWKINS, and THOMAS, Circuit Judges. Heriberto Valencia appeals from the 37-month sentence imposed following his guilty-plea conviction for reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Valencia contends that his above-guidelines sentence is substantively * 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). unreasonable given his background and criminal record. The record reflects the district court did not procedurally err, and the sentence imposed is substantively reasonable under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Further, contrary to Valencia s contention, the prospective amendment to the sentencing guidelines does not assist his case. See U.S.S.G. § 2L1.2. AFFIRMED. 2 09-10266

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