United States v. Wilfredo Torres-Valenzuela

FILED NOT FOR PUBLICATION FEB 22 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 11-50328 Plaintiff - Appellee, D.C. No. 3:11-cr-01025-JLS-1 v. MEMORANDUM * WILFREDO TORRES-VALENZUELA, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding ** Submitted February 21, 2012 Before: FERNANDEZ, McKEOWN and BYBEE, Circuit Judges. Wilfredo Torres-Valenzuela appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Torres-Valenzuela contends that his 30-month sentence was * 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). substantively unreasonable. In light of the totality of the circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a), the sentence at the low end of the Guidelines range was reasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 169 L .Ed.2d 445 (2007). Torres-Valenzuela’s contention that Nijhawan v. Holder, 557 U.S. 29, 129 S. Ct. 2294, 174 L.Ed.2d 22 (2009), overruled Almendarez–Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed.2d 350 (1998), is foreclosed by United States v. Valdovinos–Mendez, 641 F.3d 1031, 1035–36 (9th Cir. 2011). AFFIRMED.