                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 19 2011

                                                                        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. 10-50157

               Plaintiff - Appellee,             D.C. No. 3:08-cr-04486-BEN

  v.
                                                 MEMORANDUM *
CAYETANO ENRIQUE AYALA-CRUZ,

               Defendant - Appellant.



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

                              Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Cayetano Enrique Ayala-Cruz appeals from the 70-month sentence imposed

following his 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. § 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).
      Ayala-Cruz contends that the district court erred at sentencing because it

misunderstood the determinative facts of United States v. Amezcua-Vazquez, 567

F.3d 1050 (9th Cir. 2009). Ayala-Cruz has not demonstrated that this alleged error

affected his substantial rights. See United States v. Olano, 507 U.S. 725, 734-35

(1993).

      Ayala-Cruz also contends that his sentence is substantively unreasonable

under Amezcua-Vasquez because the sentence does not adequately account for the

age of his prior convictions and his individual circumstances. In light of the

totality of the circumstances and the factors set forth in 18 U.S.C. § 3553(a), the

sentence is substantively reasonable. See Amezcua-Vasquez, 567 F.3d at 1057-58.

      Ayala-Cruz further contends that his sentence violates his Fifth and Sixth

Amendment rights because it was based on facts found by the judge in violation of

Apprendi v. New Jersey, 530 U.S. 466 (2000). He raises this claim solely to

preserve the argument on appeal; as he acknowledges, the claim is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998).

      AFFIRMED.




                                           2                                     10-50157
