FILED
NOT FOR PUBLICATION JAN 27 2012
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. 11-50160
Plaintiff - Appellee, D.C. No. 3:10-cr-01915-JAH
v.
MEMORANDUM *
GUALBERTO BAHENA-CARRENO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted January 17, 2012 **
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
Gualberto Bahena-Carreno appeals from the 36-month sentence imposed
following his guilty-plea conviction for attempted entry after deportation, in
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
*
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. Appellant. P. 34(a)(2).
we affirm.
Bahena-Carreno contends that the district court procedurally erred in
denying a downward departure for cultural assimilation because the court
misapplied the parameters for granting a departure and relied on clearly erroneous
facts. The district court did not plainly err. The record does not reflect that
Bahena-Carrena requested a downward departure. Moreover, the court entertained
Bahena-Carreno’s arguments as part of its consideration of the 18 U.S.C.
§ 3553(a), granted a downward variance based on the staleness of Bahena-
Carreno’s prior conviction, and explained why a further variance was not
warranted. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en
banc); United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008) (defendant’s
burden to demonstrate reasonable probability that sentence would have been
different absent procedural error).
Bahena-Carreno also contends that his sentence is substantively
unreasonable. In light of the totality of the circumstances and the section 3553(a)
sentencing factors, the sentence is substantively reasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2 11-50160