United States v. Gerardo Valdivia

FILED
NOT FOR PUBLICATION MAY 18 2012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. 11-10277

Plaintiff - Appellee, D.C. No. 2:10-cr-00442-RLH

v.
MEMORANDUM *
GERARDO VALDIVIA,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding

Submitted May 15, 2012 **

Before: CANBY, GRABER, and M. SMITH, Circuit Judges.

Gerardo Valdivia appeals from the 57-month sentence imposed following

his guilty-plea conviction for being a deported alien found unlawfully 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.

Valdivia first contends that the district court procedurally erred by failing

adequately to explain the sentence imposed. The record belies this contention.

Valdivia next contends that the district court erred by misunderstanding its

authority to depart downward based on cultural assimilation. The district court

appears to have based its denial of a downward departure, at least in part, on a

mistaken belief that a previously deported alien cannot rely on cultural assimilation

as a ground for a departure. See U.S.S.G. § 2L1.2 cmt. n.8. However, any error is

harmless because it did not affect the district court’s selection of the sentence

imposed. See United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).

AFFIRMED.

2 11-10277