                                                                            FILED
                           NOT FOR PUBLICATION                               SEP 15 2011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. 09-50645

              Plaintiff - Appellee,              D.C. No. 3:09-cr-03032-GT-1

  v.
                                                 MEMORANDUM *
LUIS ALBERTO MARTINEZ-HUERTA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                    Gordon Thompson, District Judge, Presiding

                     Argued and Submitted December 9, 2010
                              Pasadena, California

Before: PREGERSON and CLIFTON, Circuit Judges, and HOLLAND, Senior
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
              The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.

                                          1
      Luis Alberto Martinez-Huerta (“Martinez-Huerta”) pleaded guilty to one

count of being a deported alien found in the United States, in violation of 8 U.S.C.

§ 1326(a) and (b). He argues that the district court imposed a 30-month sentence

that departed from the United States Sentencing Guidelines (“Guidelines”)

advisory range without sufficient notice to Martinez-Huerta that it intended to do

so. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We

affirm.

      While the district court used the term “departure” during the sentencing

hearing, it is clear that, in context, the court viewed the increase in sentence it was

imposing as a “variance” instead. The reasons for the increase away from the

Guidelines’ recommended range of 18 to 24 months’ imprisonment were based on

facts, not law. Moreover, the calculated Guidelines range did not reflect an upward

departure. See United States v. Cruz-Perez, 567 F.3d 1142, 1146 (9th Cir. 2009)

(“A ‘departure’ is typically a change from the final sentencing range computed by

examining the provisions of the Guidelines themselves.”). Instead, the district

court exercised its authority under United States v. Booker, 543 U.S. 220, 226

(2005), to vary from the advisory guideline range by imposing a higher sentence.

      Advance notice of the possibility of a variance is not required by Federal

Rule of Criminal Procedure 32(h), which only applies to departures. But, whether


                                            2
the sentencing court intended to depart or to vary from the recommended

Guidelines range, Martinez-Huerta was on notice that the district court would

consider a higher sentence. The presentence report, which recommended a

sentence of 30 months’ imprisonment, was available to Martinez-Huerta long

before the sentencing hearing. Martinez-Huerta must have recognized the

possibility that the district court would consider a higher sentence in light of the

report. He had ample opportunity to respond to the presentence report’s

recommendation, and, in fact, he did so in writing before the sentencing hearing.

      “[W]hether the district court imposed a sentence inside or outside the

applicable advisory range, we determine whether the sentence is reasonable.”

United States v. Mohamed, 459 F.3d 979, 985 (9th Cir. 2006). Martinez-Huerta’s

sentence was six months higher than the recommended range but within the range

calculated from his total offense level and criminal history category. The district

court considered all of the 18 U.S.C. § 3553(a) factors and determined that

Martinez-Huerta’s history of illegal reentry, and the need for deterrence, warranted

an increased sentence. Thus, it was not unreasonable for the court to impose a

sentence of 30 months. Id.

      AFFIRMED.




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