                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 09 2013

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50352

               Plaintiff - Appellee,             D.C. No. 3:10-cr-01571-JLS

  v.
                                                 MEMORANDUM*
HERMINIO GARCIA-GARCIA,

               Defendant - Appellant.


                     Appeal from the United States District Court
                        for the Southern District of California
                    Janis L. Sammartino, District Judge, Presiding

                           Submitted November 19, 2013**

Before:        CANBY, TROTT, and THOMAS, Circuit Judges.

       Herminio Garcia-Garcia appeals from the district court’s judgment and

challenges the 70-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).
      Garcia-Garcia contends that the district court abused its discretion by relying

on U.S.S.G. § 2L1.2(b) in imposing sentence. He argues that section 2L1.2(b) is

not supported by empirical evidence, resulted in improper double counting of his

prior conviction for possession of a controlled substance, arbitrarily increased his

sentence based on unrelated prior conduct, and resulted in a disproportionately

long sentence. These contentions lack merit. See United States v. Salazar-Mojica,

634 F.3d 1070, 1074 (9th Cir. 2011) (rejecting “broad allegation that the

Sentencing Commission lacked justification to authorize increases in offense

levels” under section 2L1.2); United States v. Garcia-Cardenas, 555 F.3d 1049,

1050 (9th Cir. 2009) (per curiam) (finding no improper double counting in using a

prior conviction for a sentencing enhancement and for calculating criminal history

score). The court did not procedurally err in relying on section 2L1.2(b) or

otherwise abuse its discretion in imposing Garcia-Garcia’s sentence. See Gall v.

United States, 552 U.S. 38, 51, 55-56 (2007). The within-Guidelines sentence is

substantively reasonable in light of the totality of the circumstances and the

sentencing factors set forth in 18 U.S.C. § 3553(a). See id. at 51.

      AFFIRMED.




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