FILED
APR 21 2010
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10127
Plaintiff - Appellee, D.C. No. 4:08-CR-01219-DSD
v.
MEMORANDUM *
TEODORO PENA-SEGURA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David S. Doty, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Teodoro Pena-Segura appeals from the 51-month sentence imposed
following his guilty-plea conviction for illegal re-entry after deportation, in
*
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).
violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
Pena-Segura contends that the district court procedurally erred at sentencing
by failing to consider evidence that supported a downward departure on the basis
of his family circumstances, and that the sentence is substantively unreasonable. A
review of record demonstrates that the district court did not procedurally err and
the sentence is substantively reasonable in light of the factors set forth in 18 U.S.C.
§ 3553(a) and the totality of the circumstances. See Gall v. United States, 552 U.S.
38, 51-52 (2007).
Nor is the Eighth Amendment implicated by the sentence. See United States
v. Meiners, 485 F.3d 1211, 1213 (9th Cir. 2007) (“[F]ederal courts should be
reluctant to review legislatively mandated terms of imprisonment, and . . .
successful challenges to the proportionality of particular sentences should be
exceedingly rare.”) (internal quotation marks omitted).
Pena-Segura also contends that the Government acted arbitrarily by
declining to request an additional one-level reduction pursuant to U.S.S.G
§ 3E1.1(b) because Pena-Segura did not accept a plea offer. This contention lacks
merit. See United States v. Medina-Beltran, 542 F.3d 729, 731 (9th Cir. 2008) (per
curiam), cert. denied 130 S. Ct. 168 (2009).
2 09-10127
Pena-Segura further contends that his counsel provided ineffective
assistance. We decline to review Pena-Segura’s ineffective assistance of counsel
claim on direct appeal. See United States v. McKenna, 327 F.3d 830, 845 (9th Cir.
2003).
AFFIRMED.
3 09-10127