FILED
NOT FOR PUBLICATION DEC 22 2011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. 11-30080
Plaintiff - Appellee, D.C. No. 2:10-cr-00126-RMP
v.
MEMORANDUM *
ALFREDO PORTILLO-ESCALANTE,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, Chief Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Alfredo Portillo-Escalante appeals from the 77-month sentence imposed
following his guilty-plea conviction for being an alien in the United States after
deportation, 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).
Portillo-Escalante contends that his sentence is substantively unreasonable.
In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors, the
bottom-of-the-Guideline sentence is substantively reasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007).
Portillo-Escalante further contends that his prior conviction sentencing
enhancement under U.S.S.G. § 2L1.2(b)(1)(D) is per se unreasonable. His
argument is foreclosed. See United States v. Barsumyan, 517 F.3d 1154, 1159 (9th
Cir. 2008) (policy-based argument against the Guidelines must be asserted on the
ground that its operation in a particular case results in a sentence that is
unreasonable under § 3553(a)).
Lastly, Portillo-Escalante’s contention that imposition of his 16-level
enhancement is an Apprendi violation is foreclosed. See Almendarez-Torres v.
United States, 523 U.S. 224 (1998).
AFFIRMED.
2 11-30080