FILED
NOT FOR PUBLICATION OCT 16 2012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. 11-50009
Plaintiff - Appellee, D.C. No. 2:10-cr-00568-CAS
v.
MEMORANDUM *
ARIEL GARCIA-MENDEZ, a.k.a. Julio
Cesar Medrano, a.k.a. Julio Manzanares
Medrano,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted October 9, 2012 **
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
Ariel Garcia-Mendez appeals from the 51-month sentence imposed
following his guilty-plea conviction for being an illegal alien found in the United
*
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).
States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Garcia-Mendez contends that the district court procedurally erred by failing
to: (1) appreciate its discretion under Kimbrough v. United States, 552 U.S. 85
(2007), to deviate from the illegal-reentry Guidelines based policy grounds; and
(2) explain why it rejected Garcia-Mendez’s mitigating argument concerning his
abusive childhood. We review for plain error, see United States v. Valencia-
Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The district court
stated that it had considered Garcia-Mendez’s sentencing memorandum, in which
he asserted his policy challenge under Kimbrough, and then imposed a sentence 26
months below the Guidelines range. Its failure to do more was not plain error. See
United States v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011).
Furthermore, the district court specifically addressed Garcia-Mendez’s abusive
childhood.
Garcia-Mendez argues that because the district court did not consider
departing downward to account for his cultural assimilation, it failed to adequately
consider all the 18 U.S.C. § 3553(a) sentencing factors. This argument lacks merit.
Garcia-Mendez did not raise his cultural assimilation before the district court. In
any event, we review a district court’s denial of a request for a downward
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departure as part of the overall substantive reasonableness of the sentence. See
United States v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008). In light of the totality
of the circumstances and the section 3553(a) factors, the 51-month sentence is
substantively reasonable. See Gall v. United States, 522 U.S. 38, 51 (2007).
Garcia-Mendez also maintains that U.S.S.G. § 2L1.2(b)(1)(A)’s 16-level
sentencing enhancement is constitutionally flawed because it is not based on
empirical evidence or historical facts. This contention fails because he does not
identify any constitutional provision that was allegedly violated. Furthermore, this
court has recognized that the enhancement reflects Congress’s intent to increase
penalties for aliens with prior convictions. See United States v. Ramirez-Garcia,
269 F.3d 945, 947-48 (9th Cir. 2001).
Finally, Garcia-Mendez contends that Almendarez-Torres v. United States,
523 U.S. 224 (1998), has been undermined and that 8 U.S.C. § 1326(b)(2) is
unconstitutional. This contention is foreclosed by United States v. Beng-Salazar,
452 F.3d 1088, 1091 (9th Cir. 2006).
AFFIRMED.
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