                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 28 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50018

               Plaintiff - Appellee,             D.C. No. 3:14-cr-02190-JAH

 v.
                                                 MEMORANDUM*
MILTON ANTONIO HERNANDEZ-
SERPAZ,

               Defendant - Appellant.


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

                            Submitted January 20, 2016**

Before:        CANBY, TASHIMA, and NGUYEN, Circuit Judges.

      Milton Antonio Hernandez-Serpaz appeals from the district court’s

judgment and challenges the 30-month sentence imposed following his guilty-plea

conviction for being a removed alien found in the United States, in violation of 8


          *
             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).
U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The parties agree that the district court erred by applying the preponderance

of the evidence standard when determining whether Hernandez-Serpaz had a

qualifying conviction under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Even assuming they

are correct, we agree with the government that Hernandez-Serpaz has not

demonstrated that the error affected his substantial rights. See United States v.

Jordan, 256 F.3d 922, 926 (9th Cir. 2001) (to be plain, error must have an effect on

defendant’s substantial rights). The National Crime Information Center report,

which expressly stated that it was based on fingerprint comparisons, and the

criminal history report prepared by the probation officer, provided clear and

convincing evidence that Hernandez-Serpaz was convicted of aggravated

kidnapping and attempted armed robbery in 2005.

      Hernandez-Serpaz next claims that his sentence is substantively

unreasonable. The district court did not abuse its discretion. See Gall v. United

States, 552 U.S. 38, 51 (2007). The below-Guidelines sentence is substantively

reasonable in light of the applicable 18 U.S.C. § 3553(a) sentencing factors and the

totality of the circumstances, including Hernandez-Serpaz’s criminal history. See

Gall, 552 U.S. at 51.

      AFFIRMED.


                                          2                                     15-50018
