United States v. Salvador Garcia-Real

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                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 21 2013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. 12-10154

               Plaintiff - Appellee,              D.C. No. 2:04-cr-00470-GEB

  v.
                                                  MEMORANDUM *
SALVADOR GARCIA-REAL, a.k.a.
Antonio Garcia, a.k.a. Salvador Real-
Garcia,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Garland E. Burrell, Jr., District Judge, Presiding

                              Submitted May 14, 2013 **

Before:        LEAVY, THOMAS, and MURGUIA, Circuit Judges.

       Salvador Garcia-Real appeals from the district court’s judgment and

challenges the 24-month sentence imposed upon revocation of supervised release.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

          *
             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).
      Garcia-Real contends that the district court procedurally erred by failing

adequately to explain the sentence and why it denied his requests for a downward

variance and a cultural assimilation departure. 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 considered Garcia-Real’s mitigating arguments and

adequately explained the sentence with reference to Garcia-Real’s breach of the

court’s trust and repeated violations of the immigration laws.

      Garcia-Real also contends that the district court erred by rejecting his

request for a cultural assimilation departure on the basis of an improper factor.

This court does not review the denial of a departure; rather, our review is limited to

determining whether the district court imposed a substantively reasonable sentence.

See United States v. Vasquez-Cruz, 692 F.3d 1001, 1008 (9th Cir. 2012). The

district court did not abuse its discretion in imposing Garcia-Real’s sentence. See

Gall v. United States, 552 U.S. 38, 51 (2007). In light of the totality of the

circumstances and 18 U.S.C. § 3583(e) sentencing factors, the within-Guidelines

sentence is substantively reasonable. See id.

      AFFIRMED.