FILED
NOT FOR PUBLICATION MAR 31 2010
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. 09-50303
Plaintiff - Appellee, D.C. No. 3:08-CR-02023-TJW
v.
MEMORANDUM *
MIGUEL ANGEL AVILA-QUEZADA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Miguel Angel Avila-Quezada appeals from the 57-month sentence imposed
following his guilty-plea conviction for being a deported alien found in the United
States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to
*
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).
DAT/Research
28 U.S.C. § 1291, and we affirm.
Avila-Quezada contends that the district court procedurally erred by, among
other things, applying a 16-level enhancement pursuant to U.S.S.G. §
2L1.2(b)(1)(A)(ii) because there was insufficient evidence as to the nature of his
predicate conviction. The district court did not err by relying on the
uncontroverted pre-sentence report to determine that Avila-Quezada’s conviction
was categorically a violent felony. See United States v. Romero-Rendon, 220 F.3d
1159, 1165 (9th Cir. 2000); see also United States v. Heron-Salinas, 566 F.3d 898,
899 (9th Cir. 2009) (per curiam).
Next, he asserts that the fact of the prior conviction was required to be
charged in the indictment, submitted to a jury, and proven beyond a reasonable
doubt. This contention lacks merit. See Almendarez-Torres v. United States,
523 U.S. 224, 226-27 (1998); see also United States v. Almazan-Becerra, 482 F.3d
1085, 1091 (9th Cir. 2007).
Avila-Quezada also contends that the district court insufficiently explained
why it rejected his downward-departure motion for cultural assimilation. This
contention is belied by the totality of the record, which contained an adequate
explanation. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc).
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Finally, he argues his sentence is substantively unreasonable pursuant to
United States v. Amezcua-Vasquez, 567 F.3d 1050, 1058 (9th Cir. 2009), because,
among other reasons, his qualifying crime-of-violence conviction was too stale.
However, in the instant case, unlike the offense in Amezcua-Vasquez, the predicate
felony was not too old to score under the Sentencing Guidelines’ criminal history
provisions. See U.S.S.G. § 4A1.2(e)(1); see also Amezcua-Vasquez, 567 F.3d at
1058 (“We make no pronouncement as to the reasonableness of a comparable
sentence were Amezcua’s conviction more recent[.]”). The record reflects that the
sentence imposed was substantively reasonable, under the totality of the
circumstances. See Gall v. United States, 552 U.S. 38, 53-60 (2007).
AFFIRMED.
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