FILED
NOT FOR PUBLICATION SEP 21 2012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. 11-50337
Plaintiff - Appellee, D.C. No. 3:11-cr-01378-W
v.
MEMORANDUM *
PEDRO SANTOS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Pedro Santos appeals from the 51-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. § 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. App. P. 34(a)(2).
we affirm.
The government contends that Santos’s appeal should be dismissed based on
the appeal waiver in his plea agreement. Because the district court did not discuss
the appeal waiver during the change of plea hearing, we decline to enforce it. See
United States v. Arellano-Gallegos, 387 F.3d 794, 796-97 (9th Cir. 2004).
Santos contends that the district court procedurally erred by failing to
explain adequately the sentence imposed, in that it did not specifically explain why
it was adopting a 16-level enhancement for Santos’s prior drug trafficking offense.
Our precedent does not require the district court to explain why it is adopting the
calculations set forth in the Guidelines. Although the district court imposed a 16-
level enhancement, it granted a four-level fast track departure, rather than the two-
level departure recommended by the government and contemplated by the plea
agreement. The district court explained why it was imposing the additional
departure, and why it did not find persuasive Santos’s arguments for a downward
variance from the reduced Guidelines range. Its explanation of the sentence was
plainly sufficient. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008)
(en banc).
Santos also contends that his sentence is substantively unreasonable because
the 16-level enhancement for his prior aggravated felony made the sentence longer
2 11-50337
than necessary for someone with his background. The 51-month sentence is
substantively reasonable in light of the totality of the circumstances and the 18
U.S.C. § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 51
(2007).
AFFIRMED.
3 11-50337