FILED
NOT FOR PUBLICATION APR 22 2013
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. 11-10628
Plaintiff - Appellee, D.C. No. 5:10-cr-00858-DLJ
v.
MEMORANDUM *
JOSE CUEVAS-ESTRADA,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, District Judge, Presiding
Submitted April 16, 2013 **
Before: CANBY, IKUTA, and WATFORD, Circuit Judges.
Jose Cuevas-Estrada appeals from the district court’s judgment and
challenges the 57-month sentence imposed following his guilty-plea conviction for
illegal reentry following deportation, in violation of 8 U.S.C. § 1326. We have
*
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).
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Cuevas-Estrada contends that the district court abused its discretion by
denying his request for a cultural assimilation departure on the basis of a clearly
erroneous fact, and by denying his request for a downward departure in his
criminal history category. This court does not review the denial of a departure;
rather, our review is limited to determining whether the court imposed a
substantively reasonable sentence. See United States v. Vasquez-Cruz, 692 F.3d
1001, 1008 (9th Cir. 2012). The substantive reasonableness of a sentence is
reviewed for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51
(2007).
Contrary to Cuevas-Estrada’s contention, the district court did not abuse its
discretion in imposing his sentence. The court varied downward from the advisory
Sentencing Guidelines range because it believed that the 16-level enhancement for
Cuevas-Estrada’s prior offense was excessive. The sentence is substantively
reasonable in light of the totality of the circumstances and the sentencing factors
set forth in 18 U.S.C. § 3553(a), including the need to deter and to protect the
public. See Gall, 552 U.S. at 51.
AFFIRMED.
2 11-10628