                                                                              FILED
                           NOT FOR PUBLICATION                                   APR 14 2010

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA                         No. 09-50349

             Plaintiff - Appellee,               D.C. No. 3:09-CR-00730-GT

  v.
                                                 MEMORANDUM *
 JOEL MEJIA-SOTO,

             Defendant - Appellant.


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

                              Submitted April 6, 2010
                               Pasadena, California

Before: D.W. NELSON and REINHARDT, Circuit Judges, and GERTNER, **
District Judge.

       Appellant Joel Mejia-Soto (“Mejia”) pled guilty to illegal reentry by a

deported alien, in violation of 8 U.S.C. § 1326. The district court sentenced Mejia

to an above-Guidelines sentence of 42 months after adopting the probation

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
officer’s recommendation for a 2-level upward departure. Mejia appealed his

sentence, and we now affirm.

      Mejia argues that the district court improperly calculated his sentence under

the Guidelines by considering factors outside the plea agreement and incorrectly

calculating the upward departure. However, Mejia forfeited this claim by failing to

object to the departure at the sentencing hearing. As such, the Court reviews his

claim under a plain error standard. United States v. Evans-Martinez, 530 F.3d

1164, 1167 n.1 (9th Cir. 2008).

      Mejia asserts that the district court improperly relied on factors outside the

plea agreement in imposing the sentence, namely his criminal history in the Pre-

Sentence Report (“PSR”). Yet Mejia did not challenge the PSR, and a “district

court may rely on undisputed statements in the PSR at sentencing.” United States

v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005). He also argues that the court

incorrectly calculated his upward departure by adjusting his offense level and not

his criminal history category, which was a category VI. Yet USSG §

4A1.3(a)(4)(B) states that when applying an upward departure to a defendant with

a criminal history of VI, the district court should adjust the offense level to the

appropriate range. Here, the district court correctly increased Mejia’s offense

level from 12 to 14 after determining an upward departure was appropriate.


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      Mejia also claims that the district court did not adequately explain its

sentence. Failure to “adequately to explain the sentence selected, including any

deviation from the Guidelines range,” is procedural error. United States v. Carty,

520 F.3d 984, 995 (9th Cir. 2008). Here, the district court discussed Mejia’s

criminal history, and then read from and adopted probation’s rationale for the

departure. The district court stated that it had considered the Guidelines, the

Sentencing Commission’s policy statements, and the § 3553(a) factors. The court

also gave its own reasons for the departure - specifically, Mejia’s “continuous”

criminal history, beginning at age 14, the likelihood that he would commit future

crimes, and his gang membership. In light of its consideration of these factors, the

district court’s explanation was sufficient.

      Finally, Mejia asserts that his sentence was substantively unreasonable. See

Carty, 520 F.3d at 991-93. The district court imposed a sentence of 42 months – 5

months above the high end of the Guidelines range of 30 - 37 months. The court

explained that it was departing pursuant to USSG § 4A1.3(a)(1) because Mejia’s

criminal history under-represented the likelihood that he would commit other

crimes.

      The district court’s sentence is supported by Mejia’s gang membership and

extensive criminal history, including a juvenile firearm-related charge for which he


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received a three-year sentence at a juvenile facility. Moreover, despite Mejia’s

deportation, he continued to return illegally to the country and commit further

crimes. Given these factors, as well as the short time between Mejia’s release from

custody and commission of this offense, the sentence was reasonable.

      AFFIRMED.




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