                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 30 2011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. 11-50180

               Plaintiff - Appellee,             D.C. No. 3:10-cr-04488-GT

  v.
                                                 MEMORANDUM *
ADRIAN WALDO-RAMIREZ,

               Defendant - Appellant.



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

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Adrian Waldo-Ramirez appeals from the 21-month sentence imposed

following his guilty-plea conviction for attempted entry after deportation, 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).
      Waldo-Ramirez first contends that the district court erred in calculating the

applicable Guidelines range in that it improperly denied a downward departure for

cultural assimilation. This argument fails because “it is the pre-departure

Guidelines sentencing range that the district court must correctly calculate.”

United States v. Evans-Martinez, 611 F.3d 635, 643 (9th Cir. 2010) (emphasis

added). In any event, in light of Waldo-Ramirez’s criminal history, the court did

not err in denying the departure. See U.S.S.G. § 2L1.2 cmt. n.8.

      Waldo-Ramirez next contends that his sentence is substantively

unreasonable in view of his cultural assimilation. In light of the totality of the

circumstances and the 18 U.S.C. § 3553(a) sentencing factors, Waldo-Ramirez’s

within-Guidelines sentence is substantively reasonable. See Gall v. United States,

552 U.S. 38, 51 (2007); United States v. Rodriguez-Rodriguez, 441 F.3d 767, 770

(9th Cir. 2006).

      AFFIRMED.




                                           2                                     11-50180
