                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 01 2013

                                                                        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. 12-50037

               Plaintiff - Appellee,             D.C. No. 3:10-cr-03890-BEN

  v.
                                                 MEMORANDUM *
JOSE ZAINES-VARGAS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                              Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Jose Zaines-Vargas appeals from the district court’s judgment and

challenges the 51-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).
      Zaines-Vargas contends that the district court abused its discretion by failing

to depart downward on the basis of his cultural assimilation. Our review of a

district court’s exercise of discretion to depart or vary on the basis of cultural

assimilation is subsumed in our review of whether the court imposed a

substantively reasonable sentence. See United States v. Ellis, 641 F.3d 411, 421-22

(9th Cir. 2011). The court did not abuse its discretion in imposing Zaines-Vargas’s

sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The within-

Guidelines sentence is substantively reasonable in light of the totality of the

circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a),

including the need to deter and promote respect for the law. See id.

      Zaines-Vargas contends that the district court erred by applying a 16-level

enhancement under U.S.S.G. § 2L1.2 because his prior conviction for robbery, in

violation of California Penal Code § 211, does not qualify as a crime of violence.

This contention is foreclosed, see United States v. Flores-Mejia, 687 F.3d 1213,

1215-16 (9th Cir. 2012), and we decline Zaines-Vargas’s request that we seek en

banc review of this issue.

      Zaines-Vargas’s contention that Almendarez-Torres v. United States, 523

U.S. 224 (1998), was overruled by Nijhawan v. Holder, 557 U.S. 29 (2009), is

foreclosed. See United States v. Valdovinos-Mendez, 641 F.3d 1031, 1036 (9th

Cir. 2011).

      AFFIRMED.

                                            2                                        12-50037
