                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 14 2010

                                                                         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. 09-50160

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00759-ABC

  v.
                                                 MEMORANDUM *
OMAR ANGEL SERRANO-
GUERRERO, a.k.a. Omar Angel Serrano,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Audrey B. Collins, Chief Judge, Presiding

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Omar Angel Serrano-Guerrero appeals from the 86-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(a). We have

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

      Serrano-Guerrero contends that the district court procedurally erred at

sentencing by: 1) failing to consider all of the 18 U.S.C. § 3553 factors;

2) presuming that the Guidelines range was reasonable; and 3) failing to

adequately address his mitigating arguments. The record reflects that the district

court did not procedurally err. See United States v. Carty, 520 F.3d 984, 991-93

(9th Cir. 2008) (en banc).

      Serrano-Guerrero also contends that the sentence is substantively

unreasonable in light of the district court’s failure to depart downward based on

Serrano-Guerrero’s lost opportunity to serve his federal sentence concurrent to a

state sentence. The district court did not abuse its discretion by declining to

impose a lower sentence on this basis. See id. at 993. Serrano-Guerrero also

contends, for the first time on appeal, that the sentence is substantively

unreasonable because the Guidelines range is based upon a 16-level enhancement

for a relatively stale and minor drug trafficking offense. In light of the totality of

the circumstances, the within-Guidelines sentence is substantively reasonable. See

id.; cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir. 2009).

      AFFIRMED.


                                            2                                     09-50160
