                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 02 2010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. 09-50398

               Plaintiff - Appellee,              D.C. No. 2:08-cr-01257-PSG

  v.
                                                  MEMORANDUM *
JOSEPH MORRIS PENA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                              Submitted July 19, 2010 **

Before:        B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       Joseph Morris Pena appeals from the 70-month sentence imposed following

his guilty-plea conviction for being an illegal alien found in the United States

following deportation, in violation of 8 U.S.C. § 1326(a). 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).
      Pena contends that the district court erred under Apprendi v. New Jersey,

530 U.S. 466 (2000), by increasing his sentence on the basis of a prior conviction

that was neither proven to a jury beyond a reasonable doubt nor admitted. This

argument, however, is foreclosed by Almendarez-Torres v. United States, 523 U.S.

224 (1998), and this court’s subsequent cases holding that Almendarez-Torres has

not been overruled by subsequent Supreme Court decisions. See, e.g., United

States v. Almazan-Becerra, 482 F.3d 1085, 1091 (9th Cir. 2007).

      Pena further contends that his sentence was unreasonable. Our review of the

record indicates that the district court did not procedurally err and that, under the

totality of the circumstances, the 70-month sentence at the low end of the

Guidelines was not substantively unreasonable. See United States v. Carty, 520

F.3d 984, 991-93 (9th Cir. 2008) (en banc); see also United States v. Menyweather,

447 F.3d 625, 632-33 (9th Cir. 2006) (downward departure under U.S.S.G.

§ 5H1.6 based on family circumstances “generally involve[s] situations where the

defendant is an irreplaceable caretaker of children, elderly, and/or seriously ill

family members”) (quoting United States v. Leon, 341 F.3d 928, 931 (9th Cir.

2003)). The district court was not bound by the parties’ recommendations to

impose a below-Guidelines sentence. See, e.g., United States v. Hurt, 345 F.3d

1033, 1036 (9th Cir. 2003). Nor does the fact that Pena was offered and rejected a


                                           2                                     09-50398
fast-track plea agreement that would have resulted in a lower Guidelines range

render his sentence unreasonable. See United States v. Vasquez-Landaver, 527

F.3d 798, 805 (9th Cir. 2008).

      AFFIRMED.




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