USA V. MANUEL MARTINEZ-ESCOBEDO, No. 11-50149 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JAN 27 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff -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. 11-50149 D.C. No. 3:09-cr-03836-WQH v. MEMORANDUM * MANUEL ELISEO MARTINEZESCOBEDO, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Submitted January 17, 2012 ** Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges. Manuel Eliseo Martinez-Escobedo appeals from the 75-month sentence imposed following his 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. * 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). § 1291, and we affirm. Martinez-Escobedo contends that the below-Guidelines sentence was substantively unreasonable. The record reflects that the sentence is substantively reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 51 (2007). Martinez-Escobedo s contention that Nijhawan v. Holder, 129 S. Ct. 2294 (2009), overruled Almendarez-Torres v. United States, 523 U.S. 224 (1998), is foreclosed by United States v. Valdovinos-Mendez, 641 F.3d 1031, 1035-36 (9th Cir. 2011). AFFIRMED. 2 11-50149

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