United States v. Alfredo Portillo-Escalante

FILED NOT FOR PUBLICATION DEC 22 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 11-30080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