                                                                             FILED
                             NOT FOR PUBLICATION                              DEC 14 2009

                                                                         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. 09-50095

               Plaintiff - Appellee,              D.C. No. 3:08-CR-03101-GT

   v.
                                                  MEMORANDUM *
 CARLOS MUNOZ-DURAN,

               Defendant - Appellant.



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

                           Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Carlos Munoz-Duran appeals from the 37-month sentence imposed

following his guilty-plea conviction for attempted illegal reentry, in violation of 8

U.S.C. § 1326. We have jurisdiction pursuant to 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 finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

EH/Research
       Munoz-Duran contends that the district court erred by applying an upward

departure under U.S.S.G. § 4A1.3 based on his criminal history, and by failing to

adequately consider his mitigating arguments, and that the resulting sentence is

substantively unreasonable. The record reflects that the district court did not

procedurally err in its calculation of the advisory sentencing Guideline range or

consideration of the 18 U.S.C. § 3553(a) factors, and that the sentence is

substantively reasonable in light of the totality of the circumstances. See United

States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc); see also United States

v. Higuera-Llamos, 574 F.3d 1206, 1212 (9th Cir. 2009).

       AFFIRMED.




EH/Research                               2                                       09-50095
