                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 07 2010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. 09-10266

               Plaintiff - Appellee,              D.C. No. 2:08-cr-01408-FJM

  v.

HERIBERTO VALENCIA,                               MEMORANDUM *

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                   Frederick J. Martone, District Judge, Presiding

                            Submitted August 23, 2010 **

Before:        LEAVY, HAWKINS, and THOMAS, Circuit Judges.

       Heriberto Valencia appeals from the 37-month sentence imposed following

his guilty-plea conviction for reentry after deportation, in violation of 8 U.S.C.

§ 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Valencia contends that his above-guidelines sentence is substantively

          *
             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).
unreasonable given his background and criminal record. The record reflects the

district court did not procedurally err, and the sentence imposed is substantively

reasonable under the totality of the circumstances. See Gall v. United States,

552 U.S. 38, 51 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)

(en banc).

      Further, contrary to Valencia’s contention, the prospective amendment to the

sentencing guidelines does not assist his case. See U.S.S.G. § 2L1.2.

      AFFIRMED.




                                          2                                      09-10266
