FILED
NOT FOR PUBLICATION JUL 19 2011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. 10-50157
Plaintiff - Appellee, D.C. No. 3:08-cr-04486-BEN
v.
MEMORANDUM *
CAYETANO ENRIQUE AYALA-CRUZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Cayetano Enrique Ayala-Cruz appeals from the 70-month sentence imposed
following his conviction for being a deported alien found in the United States, 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).
Ayala-Cruz contends that the district court erred at sentencing because it
misunderstood the determinative facts of United States v. Amezcua-Vazquez, 567
F.3d 1050 (9th Cir. 2009). Ayala-Cruz has not demonstrated that this alleged error
affected his substantial rights. See United States v. Olano, 507 U.S. 725, 734-35
(1993).
Ayala-Cruz also contends that his sentence is substantively unreasonable
under Amezcua-Vasquez because the sentence does not adequately account for the
age of his prior convictions and his individual circumstances. In light of the
totality of the circumstances and the factors set forth in 18 U.S.C. § 3553(a), the
sentence is substantively reasonable. See Amezcua-Vasquez, 567 F.3d at 1057-58.
Ayala-Cruz further contends that his sentence violates his Fifth and Sixth
Amendment rights because it was based on facts found by the judge in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000). He raises this claim solely to
preserve the argument on appeal; as he acknowledges, the claim is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998).
AFFIRMED.
2 10-50157