                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 21 2010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. 09-10427

               Plaintiff - Appellee,             D.C. No. 5:09-cr-00423-JW-1

  v.
                                                 MEMORANDUM *
ISRAEL GONZALEZ-REYES,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                      James Ware, District Judge, Presiding

                              Submitted May 25, 2010 **


Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Israel Gonzalez-Reyes appeals from his 37-month sentence imposed

following his guilty-plea conviction for illegal re-entry following deportation, in




          *
             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).
violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291. We

affirm.

         Gonzalez-Reyes contends that the district court treated the Sentencing

Guidelines range as presumptively appropriate. The record belies this contention.

The record reflects that the district court did not treat the Sentencing Guidelines

range as presumptively appropriate. See Gall v. United States, 552 U.S. 38, 39

(2007).

         Gonzalez-Reyes also contends that the court failed to address his arguments

concerning his motivation for illegal re-entry. The record belies this contention as

well. The district court acknowledged Gonzalez-Reyes purported motivation.

         Gonzalez-Reyes also contends that the court failed to address his challenge

to the 8-level enhancement for a prior deportation after a conviction for an

aggravated felony, pursuant to section 2L1.2(a)(1)(C) of the Sentencing

Guidelines. Though the district court erred in this regard, see Rita v. United States,

551 U.S. 338, 357 (2007), Gonzalez-Reyes has not shown that his substantial

rights were affected. See United States v. Dallman, 533 F.3d 755, 761-62 (9th Cir.

2008).

         Gonzalez-Reyes also contends that the sentence is substantively

unreasonable. In light of the totality of the circumstances and the factors set forth




                                            2                                     09-10427
in 18 U.S.C. § 3553(a), the sentence was not unreasonable. See Gall, 552 U.S. at

51.

      AFFIRMED.




                                        3                                   09-10427
