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NOT FOR PUBLICATION JUN 29 2011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. 10-10296
Plaintiff - Appellee, D.C. No. 3:09-cr-00493-JSW
v.
MEMORANDUM *
REFUGIO GALLEGOS-VALDIVIAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Refugio Gallegos-Valdivias appeals from the 57-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.
Gallegos-Valdivias contends, first, that the district court miscalculated or
*
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).
overstated his Criminal History Category when it imposed two points under
U.S.S.G. § 4A1.1(d). Gallegos-Valdivias does not dispute that he was under a
criminal justice sentence at the time that he violated section 1326; rather, he
disputes the validity of that sentence. His argument fails because he cannot attack
his state parole suspension or revocation collaterally in a federal sentencing
proceeding. See United States v. Burrows, 36 F.3d 875, 884-86 (9th Cir. 1994).
Next, he contends that the district court’s statements at sentencing did not
adequately address his various arguments in favor of a lower sentence. The record
reflects that the district judge considered the parties’ arguments at sentencing and
had a “reasoned basis for exercising his own legal decisionmaking authority.” See
United States v. Carty, 520 F.3d 984, 996 (9th Cir. 2008) (en banc) (internal
quotations omitted).
Finally, Gallegos-Valdivias challenges section 2L1.2(b)(1)(A)’s 16-level
enhancement as unreasonable and lacking in empirical foundation and argues that
its application in his case resulted in a substantively unreasonable sentence in view
of the age of his triggering offense. These contentions are also without merit.
Application of the enhancement “serve[d] the legitimate [Congressional] interest of
deterring illegal reentry by those who have committed drug-related” crimes, see
United States v. Ruiz-Chairez, 493 F.3d 1089, 1091 (9th Cir. 2007), and the
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Guidelines sentence imposed was reasonable under 18 U.S.C. § 3553(a) and the
totality of the circumstances, which reveals a pattern of illegal reentry and drug
crime, see Carty, 520 F.3d at 993.
AFFIRMED.
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