USA V. BERNARDO DELEON-TORRES, No. 11-50302 (9th Cir. 2012)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAY 18 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff -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. 11-50302 D.C. No. 3:10-cr-03751-BTM v. MEMORANDUM * BERNARDO DELEON-TORRES, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Barry T. Moskowitz, District Judge, Presiding Submitted May 15, 2012 ** Before: CANBY, GRABER, and M. SMITH, Circuit Judges. Bernardo Deleon-Torres appeals from the 72-month sentence imposed following his bench-trial 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. App. P. 34(a)(2). § 1291, and we affirm. Deleon-Torres contends that the district court erred in calculating the applicable Guidelines range in that it improperly denied a downward departure for cultural assimilation. This argument fails because it is the pre-departure Guidelines sentencing range that the district court must correctly calculate. United States v. Evans-Martinez, 611 F.3d 635, 643 (9th Cir. 2010). In any event, in light of Deleon-Torres s criminal history, the court did not err in denying the departure. See U.S.S.G. § 2L1.2 cmt. n.8. Deleon-Torres also contends that his sentence is substantively unreasonable in light of his cultural assimilation. The below-Guidelines 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). Finally, Deleon-Torres concedes that his contentions that Almendarez-Torres v. United States, 523 U.S. 224 (1998), should be limited to its facts, that Almendarez-Torres has been overruled; and that 8 U.S.C. § 1326(b) is unconstitutional, are foreclosed by Ninth Circuit precedent. See United States v. Salazar-Lopez, 506 F.3d 748, 751 n.3 (9th Cir. 2007). AFFIRMED. 2 11-50302
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