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NOT FOR PUBLICATION JUN 29 2011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. 10-10241
Plaintiff - Appellee, D.C. No. 4:09-cr-02865-FRZ
v.
MEMORANDUM *
RAUL LAZCANO-SALAZAR,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Raul Lazcano-Salazar appeals from the 40-month sentence imposed
following his guilty-plea conviction for reentry after deportation, in violation of
8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Lazcano-Salazar contends that the district court abused its discretion by
*
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).
considering both a 1987 felony machine gun possession conviction and a 1997
heroin conspiracy conviction in reaching the decision to vary only six months
downward from the applicable Guidelines range. This contention is without merit.
Section 3553(a) explicitly calls upon the sentencing judge to consider the
defendant’s “history and characteristics” in fashioning a sentence. The district
court’s determination that the age of Lazcano-Salazar’s prior felonies, when
measured against their seriousness, warranted a variance of six months was
consistent with this court’s decision in United States v. Amezcua-Vasquez, 567
F.3d 1050, 1055-56 (9th Cir. 2009).
Lazcano-Salazar also contends that the United States left him with a
“skewed impression of the seriousness” of an illegal reentry charge when it
detained him for only three weeks in 2002 after a reentry that followed his release
from prison on the heroin conviction, rendering a 40-month sentence in connection
with his present reentry unreasonable. The below-Guidelines sentence imposed
was substantively reasonable under 18 U.S.C. § 3553(a) and the totality of the
circumstances. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc).
AFFIRMED.
2 10-10241