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FILED NOT FOR PUBLICATION NOV 08 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 11-50011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