USA v. Luis Soto-Guevara, No. 10-10320 (9th Cir. 2011)
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FILED MAR 17 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 10-10320 D.C. No. 2:09-cr-00452-ECR v. MEMORANDUM * LUIS SOTO-GUEVARA, Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Edward C. Reed, District Judge, Presiding Submitted February 15, 2011 ** Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges. Luis Soto-Guevara appeals from the 17-month sentence imposed following his guilty-plea conviction for being a deported alien found unlawfully 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). Soto-Guevara contends that the staleness of his prior conviction and minimal criminal history renders his sentence substantively unreasonable. In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, SotoGuevara s below-Guidelines sentence is substantively reasonable. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc). Soto-Guevara also contends that his sentence is unreasonable because his prior conviction for sale a controlled substance, in violation of California Health & Safety Code § 11352(a), would not have triggered the 12-level enhancement under U.S.S.G. § 2L1.2(b)(1)(B) for a prior felony drug trafficking conviction before the November 1, 2008 amendments. The district court did not plainly err in applying the enhancement where Soto-Guevara committed the current illegal re-entry offense following the November 1, 2008 amendment s addition of offer to sell to the 12-level enhancement. Finally, Soto-Guevara contends that his sentence is unreasonable because his prior sale of a controlled substance conviction does not qualify as an aggravated felony. The district court did not plainly err because Soto-Guevara concedes his prior conviction qualified as a drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(B), and thus, the 12-level enhancement was appropriate even though 2 10-10320 Soto-Guevara s prior offense was not a statutory aggravated felony under 8 U.S.C. § 1101(a)(43). AFFIRMED. 3 10-10320
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