                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 04 2010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. 10-30016

               Plaintiff - Appellee,             D.C. No. 2:09-cr-02046-EFS

  v.
                                                 MEMORANDUM *
JOAQUIN BASURTO-ESPINO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Edward F. Shea, District Judge, Presiding

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Joaquin Basurto-Espino appeals from the 57-month sentence imposed

following his guilty-plea 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).
      Basurto-Espino contends that his sentence is substantively unreasonable. In

light of the totality of the circumstances, the sentence, which is below the

Guidelines range, is substantively reasonable. See United States v. Carty, 520 F.3d

984, 993 (9th Cir. 2008) (en banc).

      Basurto-Espino’s argument that U.S.S.G. § 2L1.2 should not be used both to

enhance his sentence and to calculate his criminal history has been rejected by this

court. See United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009).

      Basurto-Espino concedes that his contention that the district court

erroneously imposed a sentence above the statutory maximum is foreclosed. See

United States v. Bolanos-Hernandez, 492 F.3d 1140, 1148 (9th Cir. 2007).

      AFFIRMED.




                                           2                                   10-30016
