                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 03 2013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. 12-50271

               Plaintiff - Appellee,             D.C. No. 3:12-cr-00304-MMA

  v.
                                                 MEMORANDUM *
VICTOR VEGA-SOTO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                           Submitted September 24, 2013 **

Before:        RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Victor Vega-Soto appeals from the district court’s judgment and challenges

the 41-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).
      Vega-Soto contends that the district court procedurally erred by failing to

respond to his non-frivolous arguments for a below-Guidelines sentence. Because

Vega-Soto did not raise this procedural objection at sentencing, we review for

plain error. See United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.

2010). The district court entertained Vega-Soto’s mitigating arguments regarding

the application of the Guidelines, as reflected in its decision to depart downward

five levels, and adequately explained the sentence. See United States v.

Ayala-Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011), cert. denied, 132 S. Ct. 1941

(2012).

      Vega-Soto contends that his sentence violates Apprendi v. New Jersey, 530

U.S. 466 (2000), but acknowledges that Almendarez-Torres v. United States, 523

U.S. 224 (1998), remains binding precedent. See United States v. Estrada-

Eliverio, 583 F.3d 669, 673 (9th Cir. 2009).

      AFFIRMED.




                                          2                                   12-50271
