USA v. Jaoquin Basurto-Espino, No. 10-30016 (9th Cir. 2010)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 04 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff -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. 10-30016 D.C. No. 2:09-cr-02046-EFS v. MEMORANDUM * JOAQUIN BASURTO-ESPINO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. Joaquin Basurto-Espino appeals from the 57-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). Basurto-Espino contends that his sentence is substantively unreasonable. In light of the totality of the circumstances, the sentence, which is below the Guidelines range, is substantively reasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Basurto-Espino s argument that U.S.S.G. § 2L1.2 should not be used both to enhance his sentence and to calculate his criminal history has been rejected by this court. See United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009). Basurto-Espino concedes that his contention that the district court erroneously imposed a sentence above the statutory maximum is foreclosed. See United States v. Bolanos-Hernandez, 492 F.3d 1140, 1148 (9th Cir. 2007). AFFIRMED. 2 10-30016
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