FILED
NOT FOR PUBLICATION NOV 08 2011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. 10-50531
Plaintiff - Appellee, D.C. No. 3:10-cr-01289-LAB
v.
MEMORANDUM *
LEO NICOLAS GASGA-AMAYA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted November 8, 2011 **
Before: O’SCANNLAIN, TASHIMA, and GRABER, Circuit Judges.
Leo Nicolas Gasga-Amaya appeals from the 60-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).
Gasga-Amaya contends that the district court committed procedural error by
imposing an upward variance largely on the basis of its perceived need for
deterrence notwithstanding Gasga-Amaya’s promise not to return to the United
States. The district court did not commit procedural error. See United States v.
Carty, 520 F.3d 984, 991-92 (9th Cir. 2008) (en banc).
Gasga-Amaya also contends that the district court committed procedural
error by failing to explain adequately its rationale for imposing an upward variance
under 18 U.S.C. § 3553(a) and by failing to follow the proper procedure for
imposing such a variance. The record belies these contentions.
Lastly, Gasga-Amaya contends that the sentence above the advisory
Sentencing Guidelines range is substantively unreasonable. The 60-month
sentence was substantively reasonable in light of the totality of the circumstances
and the 18 U.S.C. § 3553(a) sentencing factors, particularly the need for the
sentence imposed to reflect the need to afford adequate deterrence. See Gall v.
United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2 10-50531