                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 09 2011

                                                                        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. 10-50471

               Plaintiff - Appellee,             D.C. No. 3:09-cr-04455-WQH

  v.
                                                 MEMORANDUM *
HERIBERTO NAVARRETE-JIMENEZ,
a.k.a. Erik Navarete-Jimenez,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                              Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Heriberto Navarrete-Jimenez appeals from the 12-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).
      Navarrete-Jimenez first contends that the district court imposed a

procedurally unreasonable sentence because it failed to consider the sentencing

factors set forth in 18 U.S.C. § 3583(e) and his mitigation arguments. However,

“the record makes clear that the district court considered the evidence and

arguments of the defendant and based its sentence on an analysis of the advisory

Guidelines range and the provisions of [18 U.S.C. § 3583(e)].” United States v.

Stoterau, 524 F.3d 988, 1000 (9th Cir. 2008).

      Navarrete-Jimenez next contends that his sentence is substantively

unreasonable because the district court improperly focused on the timing of the

violation and discounted the mitigating factors. In light of the totality of the

circumstances, including the brief period of time between Navarrete-Jimenez’s

release from custody and his illegal return to the United States, the sentence is not

substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51 (2007).

      Navarrete-Jimenez last contends that § 3583(e)(3) is unconstitutional under

Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543

U.S. 220 (2005). As he concedes, this contention is foreclosed by United States v.

Huerta-Pimental, 445 F.3d 1220, 1223-25 (9th Cir. 2006), and United States v.

Santana, 526 F.3d 1257, 1262 (9th Cir. 2008).

      AFFIRMED.


                                           2                                       10-50471
