FILED
NOT FOR PUBLICATION MAR 01 2012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. 11-10213
Plaintiff - Appellee, D.C. No. 2:10-cr-00184-EJG
v.
MEMORANDUM *
HERIBERTO SUAREZ-AGUILAR,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, District Judge, Presiding
Submitted February 21, 2012 **
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Heriberto Suarez-Aguilar appeals from the 57-month sentence imposed
following his guilty-plea conviction 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.
*
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).
§ 1291, and we affirm.
Suarez-Aguilar contends that his sentence is substantively unreasonable
because the district court did not vary downward from the Guidelines range based
on the “staleness” of his prior conviction, which served as the predicate for a 16-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). He also contends that the
district court erred by failing to vary downward based on a proposed amendment to
U.S.S.G. § 2L1.2(b) that was pending at the time he was sentenced.
In light of the totality of the circumstances, including the seriousness of
Suarez-Aguilar’s prior conviction and his multiple prior deportations, the within-
Guidelines sentence is not substantively unreasonable. See 18 U.S.C. § 3553(a);
Gall v. United States, 552 U.S. 38, 51 (2007). Furthermore, the district court’s
failure to grant the requested variance to reflect the proposed amendment to the
Guidelines did not result in a substantively unreasonable sentence. See United
States v. Ruiz-Apolonio, 657 F.3d 907, 918 (9th Cir. 2011) (“That the Commission
has promulgated a not-yet-adopted amendment that is very likely to be adopted and
that would result in reduced Guidelines ranges does not render a district court’s
failure to grant a variance substantively unreasonable.”).
AFFIRMED.
2 11-10213