FILED
NOT FOR PUBLICATION JUL 19 2012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. 11-50449
Plaintiff - Appellee, D.C. No. 3:11-cr-02747-LAB
v.
MEMORANDUM *
NOE MACIAS-ARIAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted July 17, 2012 **
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Noe Macias-Arias appeals from the 42-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 we affirm.
Macias-Arias contends that the district court procedurally erred by: (1)
*
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).
giving excessive weight to deterrence to the exclusion of other 18 U.S.C. § 3553(a)
sentencing factors; (2) using an incorrect legal standard to determine the extent of
the variance; and (3) failing to explain adequately the basis for the upward variance
and why a 42-month sentence is necessary. The record belies these contentions.
The district court considered and discussed the advisory Guidelines range and the
section 3553(a) sentencing factors, and explained at length the reasons for the
variance and the sentence.
Macias-Arias also contends that his sentence is substantively unreasonable
because it is greater than necessary to achieve the section 3553(a) sentencing
objectives. The record reflects that, under 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 11-50449