United States v. Gilberto Sanchez-Montano

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NOT FOR PUBLICATION NOV 08 2011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. 11-50011

Plaintiff - Appellee, D.C. No. 3:09-cr-04119-WQH

v.
MEMORANDUM *
GILBERTO SANCHEZ-MONTANO,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding

Submitted November 8, 2011 **

Before: O’SCANNLAIN, TASHIMA, and GRABER, Circuit Judges.

Gilberto Sanchez-Montano appeals from his jury-trial conviction and 48-

month sentence 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).
 Sanchez-Montano contends that his sentence is substantively unreasonable

because the district court failed to account for the staleness of his prior felony

conviction that triggered a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A).

This contention lacks merit. The record reflects that the district court considered

the age of the conviction, in conjunction with the 18 U.S.C. § 3553(a) sentencing

factors, prior to granting a downward variance from the adjusted Guidelines range.

The sentence is substantively reasonable under the totality of the circumstances

and in light of the § 3553(a) sentencing factors. See Gall v. United States, 552

U.S. 38, 51 (2007).

Sanchez-Montano’s contention that his Sixth Amendment right to

confrontation was violated by the admission of a warrant of removal is foreclosed.

See United States v. Orozco–Acosta, 607 F.3d 1156, 1164 (9th Cir. 2010).

AFFIRMED.

2 11-50011