                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 29 2011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. 10-50516

               Plaintiff - Appellee,             D.C. No. 3:10-cr-01466-LAB

  v.
                                                 MEMORANDUM *
DAVID AYALA-ROMERO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                           Submitted November 21, 2011 **

Before:        TASHIMA, BERZON, and TALLMAN, Circuit Judges.

       David Ayala-Romero appeals from the 77-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).
      Ayala-Romero contends that the district court committed plain error by

considering the proceedings in a prior case, when imposing his sentence. The

district court did not plainly err by explaining that, in its view, the proceedings in

the prior case precluded the court from negotiating an appeal waiver in exchange

for a reduced sentence. See United States v. Gonzalez-Melchor, 648 F.3d 959 (9th

Cir. 2011). Moreover, Ayala-Romero has not shown that he was prejudiced by the

district court’s consideration of the proceedings in the prior case. See United

States v. Waknine, 543 F.3d 546, 554-55 (9th Cir. 2008).

      Because the district court did not plainly err by considering the proceedings

in the prior case, Ayala-Romero’s Due Process claim also fails.

      Ayala-Romero also contends that the district court violated the parsimony

provision of 18 U.S.C. § 3553(a) because it imposed a sentence that was greater

than it believed was necessary to achieve the purposes of sentencing. The record

belies that contention. To the extent that Ayala-Romero challenges the substantive

reasonableness of his 77-month sentence, that challenge also fails. In light of the

totality of the circumstances and the 18 U.S.C. § 3553(a) factors, the sentence at

the low-end of the Guidelines range was reasonable. See United States v. Carty,

520 F.3d 984, 993-94 (9th Cir. 2008) (en banc).




                                            2                                     10-50516
      Finally, Ayala-Romero contends that the district court’s comments about

another federal defender’s actions in the prior case violated his right to effective

assistance of counsel. Ayala-Romero has not shown that he was prejudiced by the

court’s comments. See United States v. Amlani, 111 F.3d 705, 710 (9th Cir. 1997).

      AFFIRMED.




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