United States v. Gustavo Villasenor-Botello

FILED NOT FOR PUBLICATION MAR 08 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 10-30100 Plaintiff - Appellee, D.C. No. 2:09-cr-06044-LRS v. MEMORANDUM * GUSTAVO VILLASENOR-BOTELLO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Washington Lonny R. Suko, Chief Judge, Presiding Submitted February 15, 2011 ** Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges. Gustavo Villasenor-Botello appeals from the 76-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). Villasenor-Botello contends that the sentence imposed was greater than necessary to accomplish the statutory purposes of sentencing. The record reflects that the district court carefully considered the 18 U.S.C. § 3553(a) sentencing factors before concluding that the circumstances were insufficient to warrant a sentence below the one imposed. Villasenor-Botello’s sentence in the middle of the Guidelines range is substantively reasonable under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc). Villasenor-Botello acknowledges that his contention that the district court erroneously imposed a sentence above the statutory maximum is foreclosed, but raises it to preserve the issue for potential future review. See United States v. Bolanos-Hernandez, 492 F.3d 1140, 1148 (9th Cir. 2007). AFFIRMED. 2 10-30100