                                                                           FILED
                             NOT FOR PUBLICATION                            APR 19 2010

                                                                        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. 09-50290

               Plaintiff - Appellee,              D.C. No. 3:08-cr-02523-WQH

  v.
                                                  MEMORANDUM *
JESUS GONZALEZ-MENDOZA,

               Defendant - Appellant.



                     Appeal from the United States District Court
                       for the Southern District of California
                     William Q. Hayes, District Judge, Presiding

                               Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Jesus Gonzalez-Mendoza appeals from the 60-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 pursuant to 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).
      Gonzalez-Mendoza contends that the district court procedurally erred by

failing to adequately explain the sentence and by not responding to his non-

frivolous arguments in mitigation. The record reflects that the district court

carefully considered the 18 U.S.C. § 3553(a) sentencing factors, including

Gonzalez-Mendoza’s arguments in mitigation, before concluding that the

circumstances were insufficient to warrant a sentence below the one imposed. The

district court did not procedurally err in fashioning the sentence. See United States

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

      Gonzales-Mendoza also contends that the sentence imposed is substantively

unreasonable because the prior aggravated felony conviction used to impose a 16-

level enhancement to his base offense level was remote in time, unrelated to the

instant offense, and already accounted for in his criminal history score. This

argument lacks merit. Cf. United States v. Amezcua-Vasquez, 567 F.3d 1050,

1055-56 (9th Cir. 2009); see also United States v. Garcia-Cardenas, 555 F.3d

1049, 1050 (9th Cir. 2009) (per curiam). The sentence is substantively reasonable

under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-

52 (2007).

      AFFIRMED.




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