United States v. Jaime Garcia-Herrera

FILED NOT FOR PUBLICATION JUN 29 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 10-10188 Plaintiff - Appellee, D.C. No. 2:09-cr-01090-GMS v. MEMORANDUM * JAIME GARCIA-HERRERA, a.k.a. Cobra Barrioquatro, a.k.a. Miguel Lardoguri- Gonzales, Defendant - Appellant. Appeal from the United States District Court for the Northern District of California G. Murray Snow, District Judge, Presiding Submitted June 15, 2011 ** Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges. Jaime Garcia-Herrera appeals from the 50-month sentence imposed following his guilty-plea conviction for re-entry of removed alien, in violation of * 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). 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Garcia-Herrera contends that the district court procedurally erred (1) by failing to consider his argument that the sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) lacks an empirical basis or considered rationale and is not an accurate measure of the gravity of the underlying offense; and (2) by failing to explain why it selected his sentence. We review for plain error, see United States v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008), and affirm because Garcia-Herrera has not established any error by the district court, see id. at 761-62. The record shows that the court heard and considered all of Garcia-Herrera’s arguments and properly explained its rationale for selecting the sentence. See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1053-54 (9th Cir. 2009). Garcia-Herrera also contends that the sentence is substantively unreasonable. In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, the below-Guidelines sentence was not substantively unreasonable. See United States v. Valencia-Barragan, 608 F.3d 1103, 1108-09 (9th Cir. 2010). AFFIRMED. 2 10-10188