                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 29 2012

                                                                        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. 11-10554

               Plaintiff - Appellee,             D.C. No. 3:11-cr-00053-JSW

  v.
                                                 MEMORANDUM *
BERYL CHRIS BUIZA SILVA,

               Defendant - Appellant.



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

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Beryl Chris Buiza Silva appeals from the 60-month sentence imposed

following his guilty-plea conviction for reentry of a removed alien, 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).
      Silva contends that his below-Guidelines sentence is substantively

unreasonable because the district court focused too heavily on his 2001 aggravated

felony conviction and failed to give sufficient weight to the mitigating sentencing

factors. The sentence imposed is substantively reasonable in light of the totality of

the circumstances and the 18 U.S.C. § 3553(a) sentencing factors. See Gall v.

United States, 552 U.S. 38, 51 (2007).

      Silva also contends that his sentence to an aggravated term of incarceration

under 8 U.S.C. § 1326(b)(2) was improper because the government did not allege

in the indictment that he was previously convicted of an aggravated felony. As

Silva concedes, this contention is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998). See United States v. Pacheco-Zepeda, 234 F.3d 411,

412 (9th Cir. 2000).

      AFFIRMED.




                                          2                                    11-10554
