                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 18 2012

                                                                        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. 11-50302

               Plaintiff - Appellee,             D.C. No. 3:10-cr-03751-BTM

  v.
                                                 MEMORANDUM *
BERNARDO DELEON-TORRES,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Southern District of California
                    Barry T. Moskowitz, District Judge, Presiding

                              Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       Bernardo Deleon-Torres appeals from the 72-month sentence imposed

following his bench-trial conviction for being a deported alien found in the United

States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.




          *
             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).
§ 1291, and we affirm.

      Deleon-Torres contends that the district court erred in calculating the

applicable Guidelines range in that it improperly denied a downward departure for

cultural assimilation. This argument fails because “it is the pre-departure

Guidelines sentencing range that the district court must correctly calculate.”

United States v. Evans-Martinez, 611 F.3d 635, 643 (9th Cir. 2010). In any event,

in light of Deleon-Torres’s criminal history, the court did not err in denying the

departure. See U.S.S.G. § 2L1.2 cmt. n.8.

      Deleon-Torres also contends that his sentence is substantively unreasonable

in light of his cultural assimilation. The below-Guidelines sentence is

substantively reasonable in light of the totality of the circumstances and the 18

U.S.C. § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 51

(2007).

      Finally, Deleon-Torres concedes that his contentions that

Almendarez-Torres v. United States, 523 U.S. 224 (1998), should be limited to its

facts, that Almendarez-Torres has been overruled; and that 8 U.S.C. § 1326(b) is

unconstitutional, are foreclosed by Ninth Circuit precedent. See United States v.

Salazar-Lopez, 506 F.3d 748, 751 n.3 (9th Cir. 2007).

      AFFIRMED.


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