FILED
FEB 23 2011
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30208
Plaintiff - Appellee, D.C. No. 2:10-cr-00012-WFN
v.
MEMORANDUM *
JOSE MARIA HERNANDEZ ROJAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Jose Maria Hernandez Rojas appeals from the 42-month sentence imposed
following his guilty-plea conviction for being an alien in the United States after
*
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).
deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
Rojas argues that his above-Guidelines sentence is substantively
unreasonable because it is greater than necessary to accomplish the goals of
sentencing. The record reflects that the sentence imposed is substantively
reasonable in light of the totality of the circumstances and the factors set forth in
18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 51-52 (2007); see
also United States v. Orlando, 553 F.3d 1235, 1239 (9th Cir. 2009) (sentence with
upward variance was substantively reasonable where the district court reasonably
found the Guideline sentence insufficient to provide the necessary deterrence, to
address the need for the defendant to learn respect for the law, and to reflect the
nature of the defendant’s criminal history).
Rojas further contends that his prior conviction sentencing enhancement
under U.S.S.G. § 2L1.2(b)(1)(D) is per se unreasonable. This argument is
foreclosed by United States v. Barsumyan, 517 F.3d 1154, 1159 (9th Cir. 2008)
(policy-based argument against the Guidelines must be asserted on the ground that
its operation in a particular case results in a sentence that is unreasonable under
§ 3553(a)).
AFFIRMED.
2 10-30208