                                                                           FILED
                            NOT FOR PUBLICATION                            MAY 21 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50345

               Plaintiff - Appellee,             D.C. No. 3:13-cr-01205-LAB

  v.
                                                 MEMORANDUM*
BALDEMAR HERNANDEZ-ALVAREZ,

               Defendant - Appellant.


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

                              Submitted May 13, 2014**

Before:        CLIFTON, BEA, and WATFORD, Circuit Judges.

       Baldemar Hernandez-Alvarez appeals from the district court’s judgment and

challenges the 119-month sentence imposed following his guilty-plea conviction

for attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have



          *
             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).
jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Hernandez-Alvarez contends that the district court erred by failing to use the

Guidelines range as the starting point in its sentencing analysis. We review for

plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.

2010), and find none. The district court properly used the Guidelines range as the

starting point in the sentencing process and kept the range in mind while weighing

the 18 U.S.C. § 3553(a) factors. See United States v. Autery, 555 F.3d 864, 872

(9th Cir. 2009).

      Hernandez-Alvarez also contends the sentence is substantively unreasonable

because it resulted from the district court’s abuse of discretion in denying a fast-

track departure and because it is greater than necessary to accomplish the

sentencing purposes set forth in section 3553(a). We do not review the district

court’s discretionary decision to decline a fast-track departure except as part of our

review of the substantive reasonableness of the sentence. See United States v.

Ellis, 641 F.3d 411, 421 (9th Cir. 2011). The above-Guidelines sentence is

substantively reasonable in light of the section 3553(a) sentencing factors and the

totality of the circumstances, including Hernandez-Alvarez’s repeated immigration




                                           2                                    13-50345
violations and his failure to be deterred by prior sentences. See Gall v. United

States, 552 U.S. 38, 51 (2007). We find no abuse of discretion. See id.

      AFFIRMED.




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