                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 26 2012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. 11-50390

              Plaintiff - Appellee,              D.C. No. 3:11-cr-02510-LAB-1

  v.
                                                 MEMORANDUM *
ADOLFO FLORES-CORTES,

              Defendant - Appellant.



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

                     Argued and Submitted November 8, 2012
                              Pasadena, California

Before: GOODWIN and O’SCANNLAIN, Circuit Judges, and ZOUHARY,
District Judge.**

       Defendant-Appellant Adolfo Flores-Cortes challenges his 40-month

sentence for illegal reentry on two theories of procedural error. Flores-Cortes




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Jack Zouhary, District Judge for the U.S. District
Court for Northern Ohio, sitting by designation.
argues that: (1) the district judge improperly based the sentence on a factual

finding that Flores-Cortes’ 2006 illegal entry sentence was 39 months, when in

actuality he received consecutive sentences for two separate and distinct

offenses—24 months for illegal entry and 15 months for violating supervised

release from a 2003 conviction; and (2) the district judge improperly considered

the cost to the government of Flores-Cortes’ previous and instant offenses.

Because the district court did not commit procedural error, we affirm.

         This court reviews a sentence for abuse of discretion. United States v.

Blinkinsop, 606 F.3d 1110, 1114 (9th Cir. 2010). A defendant’s opinion that a

different sentence is appropriate does not justify reversal.

         Flores-Cortes argues that his earlier 15-month revocation sentence was

imposed only to punish a breach of the court’s trust, and that because he received

only 24 months of custody for illegal entry at that time, 24 months ought to be the

starting point for a deterrent sentence in this case. Flores-Cortes attempts to

characterize the 39-month aggregate sentence as a “fact” relied upon by the district

judge.

         When reviewing a sentence for procedural error, this court ensures, inter

alia, that the district judge chose a sentence “that is not based on clearly erroneous

facts.” Id. Such facts are reviewed for clear error and must be “illogical,


                                            2
implausible, or without support in the record” to justify reversal. United States v.

Fitch, 659 F.3d 788, 797 (9th Cir. 2011). First, the record makes clear that the

district judge explicitly recognized that Flores-Cortes’ prior 39-month

imprisonment arose from two separate, consecutive sentences. Second, the district

judge never characterized the prior 15-month sentence for a supervised release

violation as punishment for an immigration offense. Thus, the district judge did

not rely on clearly erroneous facts.

      As to Flores-Cortes’ costs argument, while the district judge did initially

discuss invoking government resources each time Flores-Cortes returns, defense

counsel objected to its consideration. The district judge then explicitly stated

several times that he would not consider costs as a factor, and nothing in the record

suggests he did otherwise. Rather, the district judge made clear that he felt a 40-

month sentence was appropriate to deter Flores-Cortes from returning yet again to

this country. The district judge did not commit procedural error here either.

      AFFIRMED.




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