                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 27 2011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. 11-50089

               Plaintiff - Appellee,             D.C. No. 3:09-cr-01802-GT

  v.
                                                 MEMORANDUM *
SERAFIN HERNANDEZ-GARCIA,

               Defendant - Appellant.



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

                            Submitted October 25, 2011 **

Before:        TROTT, GOULD, and RAWLINSON, Circuit Judges.

       Serafin Hernandez-Garcia appeals from the 33-month sentence imposed

following his 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. Appellant. P. 34(a)(2).
      Hernandez-Garcia contends that the district court improperly departed

upward on the basis of criminal history when calculating his Guidelines range, and

that the district court failed to provide the requisite reasoned explanation of the

departure. This contention is without merit, where the record shows that district

did not procedurally err and “any deviation from the applicable advisory guidelines

range will be viewed as an exercise of the district court’s post-Booker discretion

and reviewed only for reasonableness.” See United States v. Mohamed, 459 F.3d

979, 987 (9th Cir. 2006); see also United States v. Ellis, 641 F.3d 411, 421-22 (9th

Cir. 2011) (affirming that “it is not necessary to consider whether the district court

correctly applied U.S.S.G. § 4A1.3 ... [but] only whether the defendant’s ultimate

sentence was reasonable”). In light of the totality of the circumstances and the 18

U.S.C. § 3553(a) sentencing factors, the sentence is substantively reasonable. See

Gall v. United States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




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