FILED
NOT FOR PUBLICATION JUL 18 2011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. 10-10305
Plaintiff - Appellee, D.C. No. 5:08-cr-00634-JW
v.
MEMORANDUM *
SALVADOR PRADO-FIGUEROA,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
James Ware, Chief District Judge, Presiding
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Salvador Prado-Figueroa appeals from the 63-month sentence imposed
following his guilty-plea conviction to illegal reentry following deportation, 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).
Prado-Figueroa contends that the district court procedurally erred in its
calculation of the Guidelines, because at the time of his sentencing the United
States Sentencing Commission had proposed an amendment deleting the provision
for “recency points” in calculating criminal history under U.S.S.G. § 4A1.1(e).
The guidelines amendment upon which Prado-Figueroa relies was not in effect
when the district court imposed the sentence, and accordingly, the district court did
not procedurally err by refusing to apply the proposed amendment. See U.S.S.G.
§ 1B1.11(a) (“The court shall use the Guidelines Manual in effect on the date that
the defendant is sentenced.”).
Prado-Figueroa also contends that his sentence is substantively
unreasonable. Given the age of Prado-Figueroa’s prior conviction and the other
aspects of his criminal history, application of the 16-level prior conviction
enhancement did not result in an unreasonable sentence in this case. See United
States v. Valencia-Barragan, 608 F.3d 1103, 1108-09 (9th Cir. 2010). In light of
the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors,
Prado-Figueroa’s sentence is substantively reasonable. See United States v. Carty,
520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).
AFFIRMED.
2 10-10305