FILED
NOT FOR PUBLICATION FEB 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10239
Plaintiff - Appellee, D.C. No. 2:09-cr-00376-MCE
v.
MEMORANDUM *
GERARDO ANTONIO CAISHPAL-
HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England Jr., District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Gerardo Antonio Caishpal-Hernandez appeals from the 70-month sentence
imposed following his guilty-plea conviction for being a deported alien found in
*
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).
the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
Caishpal-Hernandez contends that the district court procedurally erred by
failing to explain sufficiently the sentence imposed and to address the arguments
he presented for a below-Guidelines sentence. The record reflects that the district
court provided a reasoned explanation for the sentence and adequately addressed
Caishpal-Hernandez’s arguments in mitigation to allow for meaningful appellate
review. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en
banc).
Caishpal-Hernandez also contends that his sentence is substantively
unreasonable because it is exceptionally harsh relative to other individuals
convicted of illegal reentry and was imposed to discourage reentry defendants from
exercising their constitutional rights. In light of the totality of the circumstances
and the factors set forth in 18 U.S.C. § 3553(a), the district court’s sentence is not
substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Carty, 520 F.3d 984, 993-94 (9th Cir. 2008) (en banc). Moreover,
nothing in the record suggests that the district court imposed the sentence as
punishment for Caishpal-Hernandez’s decision to reject the proposed fast-track
2 10-10239
plea agreement. See United States v. Vasquez-Landaver, 527 F.3d 798, 805-06
(9th Cir. 2009).
AFFIRMED.
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