FILED
NOT FOR PUBLICATION OCT 27 2011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. 10-50483
Plaintiff - Appellee, D.C. No. 3:09-cr-01243-MMA
v.
MEMORANDUM *
ELIAS TORRES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted October 25, 2011 **
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
Elias Torres 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 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).
Torres contends that his sentence is substantively unreasonable due to the
staleness of his prior felony conviction that triggered a 16-level enhancement under
U.S.S.G. §2L1.2(b)(1)(A). We review for plain error. See United States v.
Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009). The district court did not plainly
err, as the record reflects that it considered Torres’ argument in this regard, and
accounted for the age of the prior conviction by reducing his criminal history
category from VI to V, and by granting a two-level downward departure based on a
combination of factors. See United States v. Amezcua-Vasquez, 567 F.3d 1050,
1054-56 (9th Cir. 2009). The sentence is substantively reasonable under the
totality of the circumstances and in light of the sentencing factors set forth in 18
U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2 10-50483