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NOT FOR PUBLICATION FEB 23 2011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. 10-50307
Plaintiff - Appellee, D.C. No. 3:10-cr-02090-BEN
v.
MEMORANDUM *
TEODORO MARTINEZ-CARMONA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Teodoro Martinez-Carmona appeals from the 36-month sentence imposed
following his guilty-plea conviction for being an alien in the United States after
deportation, 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).
Relying on United States v. Reese, 2 F.3d 870 (9th Circ. 1993), Martinez-
Carmona contends that the district court impermissibly engaged in double and
triple counting when it relied on prior convictions to calculate the criminal history
category, enhance the offense level, and impose an upward variance. However,
prior convictions can be used as a basis for sentencing enhancements under
U.S.S.G. § 2L1.2 and in calculating a defendant’s criminal history score. See
United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (per
curiam). Because the variance was not based on the Guidelines, it could not
constitute impermissible double counting. See Reese, 2 F.3d at 895.
He next contends that the district court’s reliance on judge-found facts to
impose an above-Guideline sentence violated Apprendi v. New Jersey, 530 U.S.
466 (2000). This contention fails as the sentence was imposed under the advisory
Guidelines and did not exceed the statutory maximum sentence, as established by
the statute of conviction. See United States v. Booker, 543 U.S. 220 (2005); see
also United States v. Ameline, 409 F.3d 1073, 1077-78 (9th Cir. 2005)(en banc).
To the extent Martinez-Carmona argues that his sentence is substantively
unreasonable, 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
2 10-50307
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).
AFFIRMED.
3 10-50307