FILED
NOT FOR PUBLICATION MAR 17 2011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. 10-10320
Plaintiff - Appellee, D.C. No. 2:09-cr-00452-ECR
v.
MEMORANDUM *
LUIS SOTO-GUEVARA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Luis Soto-Guevara appeals from the 17-month sentence imposed following
his guilty-plea conviction for being a deported alien found unlawfully 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).
Soto-Guevara contends that the staleness of his prior conviction and minimal
criminal history renders his sentence substantively unreasonable. In light of the
totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, Soto-
Guevara’s below-Guidelines sentence is substantively reasonable. See United
States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).
Soto-Guevara also contends that his sentence is unreasonable because his
prior conviction for sale a controlled substance, in violation of California Health &
Safety Code § 11352(a), would not have triggered the 12-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(B) for a prior felony drug trafficking conviction before the
November 1, 2008 amendments. The district court did not plainly err in applying
the enhancement where Soto-Guevara committed the current illegal re-entry
offense following the November 1, 2008 amendment’s addition of “offer to sell” to
the 12-level enhancement.
Finally, Soto-Guevara contends that his sentence is unreasonable because his
prior sale of a controlled substance conviction does not qualify as an aggravated
felony. The district court did not plainly err because Soto-Guevara concedes his
prior conviction qualified as a drug trafficking offense under U.S.S.G.
§ 2L1.2(b)(1)(B), and thus, the 12-level enhancement was appropriate even though
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Soto-Guevara’s prior offense was not a statutory “aggravated felony” under 8
U.S.C. § 1101(a)(43).
AFFIRMED.
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