FILED
NOT FOR PUBLICATION AUG 30 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50322
Plaintiff - Appellee, D.C. No. 3:11-cr-05203-WQH
v.
MEMORANDUM*
JORGE CARVAJAL,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted July 30, 2013**
Before: HUG, CANBY, and LEAVY, Circuit Judges.
Jorge Carvajal appeals from the district court’s judgment and challenges the
27-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).
Carvajal contends that his sentence is substantively unreasonable because
the prior conviction triggering an eight-level Guidelines enhancement was stale.
He relies on United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009),
which held a 16-level enhancement unreasonable because it took no account of the
staleness of the conviction that gave rise to the enhancement. Carvajal’s case is
distinguishable, however, because the staleness of Carvajal’s triggering conviction
was taken into account under post-Amezcua amendments to the Guidelines that
resulted in a lower enhancement. In addition, Carvajal had a prior conviction for
re-entry after removal. On this record, the district court did not abuse its discretion
in imposing Carvajal’s sentence. See Gall v. United States, 552 U.S. 38, 51
(2007). The 27-month sentence at the top of the Guidelines range is substantively
reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of
the circumstances, including Carvajal’s prior 27-month sentence for violating
section 1326. See id.
Carvajal’s contention that Almendarez-Torres v. United States, 523 U.S. 224
(1998), was overruled by Nijhawan v. Holder, 557 U.S. 29 (2009), is foreclosed.
See United States v. Valdovinos-Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011).
AFFIRMED.
2 12-50322