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NOT FOR PUBLICATION JUN 29 2011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