                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 18 2010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. 09-50276

               Plaintiff - Appellee,             D.C. No. 3:09-CR-01051-LAB

  v.
                                                 MEMORANDUM *
MELECIO ALDANA-ORTIZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                              Submitted May 25, 2010 **

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

       Melecio Aldana-Ortiz appeals from the 68-month sentence imposed

following his guilty-plea conviction for attempted entry after deportation, in




          *
             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).
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      Aldana-Ortiz contends that the district court procedurally erred by: (1)

failing to respond to his non-frivolous argument that a sixteen-level enhancement,

under U.S.S.G. § 2L1.2, was sufficient to compensate for any underrepresentation

in his criminal history score, and (2) focusing on the need for deterrence to the

exclusion of the other 18 U.S.C. § 3553(a) sentencing factors. The record reflects

that the district court did not procedurally err. See United States v. Carty, 520 F.3d

984, 992-93 (9th Cir. 2008) (en banc).

      Aldana-Ortiz further contends that his sentence is substantively

unreasonable under United States v. Amezcua-Vasquez, 567 F.3d 1050, 1056 (9th

Cir. 2009), because the sixteen-level enhancement was predicated on a “stale”

conviction. In light of the totality of the circumstances of this case and the

§ 3553(a) sentencing factors, the sentence is substantively reasonable. See United

States v. Valencia-Barragan, 600 F.3d 1132, 1137 (9th Cir. 2010); United States v.

Higuera-Llamos, 574 F.3d 1206, 1211-12 (9th Cir. 2009); cf. Amezcua-Vasquez,

567 F.3d at 1055-57.

      AFFIRMED.




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