                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 29 2011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. 10-10296

               Plaintiff - Appellee,              D.C. No. 3:09-cr-00493-JSW

  v.
                                                  MEMORANDUM *
REFUGIO GALLEGOS-VALDIVIAS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                              Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Refugio Gallegos-Valdivias appeals from the 57-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.

       Gallegos-Valdivias contends, first, that the district court miscalculated or

          *
             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).
overstated his Criminal History Category when it imposed two points under

U.S.S.G. § 4A1.1(d). Gallegos-Valdivias does not dispute that he was under a

criminal justice sentence at the time that he violated section 1326; rather, he

disputes the validity of that sentence. His argument fails because he cannot attack

his state parole suspension or revocation collaterally in a federal sentencing

proceeding. See United States v. Burrows, 36 F.3d 875, 884-86 (9th Cir. 1994).

      Next, he contends that the district court’s statements at sentencing did not

adequately address his various arguments in favor of a lower sentence. The record

reflects that the district judge considered the parties’ arguments at sentencing and

had a “reasoned basis for exercising his own legal decisionmaking authority.” See

United States v. Carty, 520 F.3d 984, 996 (9th Cir. 2008) (en banc) (internal

quotations omitted).

      Finally, Gallegos-Valdivias challenges section 2L1.2(b)(1)(A)’s 16-level

enhancement as unreasonable and lacking in empirical foundation and argues that

its application in his case resulted in a substantively unreasonable sentence in view

of the age of his triggering offense. These contentions are also without merit.

Application of the enhancement “serve[d] the legitimate [Congressional] interest of

deterring illegal reentry by those who have committed drug-related” crimes, see

United States v. Ruiz-Chairez, 493 F.3d 1089, 1091 (9th Cir. 2007), and the


                                           2                                      10-10296
Guidelines sentence imposed was reasonable under 18 U.S.C. § 3553(a) and the

totality of the circumstances, which reveals a pattern of illegal reentry and drug

crime, see Carty, 520 F.3d at 993.

      AFFIRMED.




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