                                                                            FILED
                            NOT FOR PUBLICATION                             DEC 15 2015

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50019

               Plaintiff - Appellee,             D.C. No. 3:14-cr-02822-LAB

 v.
                                                 MEMORANDUM*
OSCAR NOE PARADA-CALDERON,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                           Submitted December 9, 2015**

Before:        WALLACE, RAWLINSON, and IKUTA, Circuit Judges.

      Oscar Noe Parada-Calderon appeals from the district court’s judgment and

challenges the 12-month sentence and three-year term of supervised release

imposed following his guilty-plea conviction for being a removed alien found in



          *
             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).
the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      First, Parada-Calderon contends that the district court erred by failing to

provide notice under Federal Rule of Criminal Procedure 32(h) of its intent to

depart upwards. The record does not support Parada-Calderon’s contention that

the district court applied an upward departure under either U.S.S.G. §§ 4A1.3(a)(1)

or 5K2.0(a)(2). Instead, the court imposed an upward variance based on the 18

U.S.C. § 3553(a) factors. Therefore, it was not required to give notice under Rule

32(h). See Irizarry v. United States, 553 U.S. 708, 714-16 (2008).

      Second, Parada-Calderon contends that the district court procedurally erred

by imposing the sentence based on clearly erroneous facts, namely, that he sold

drugs while in the United States. See United States v. Carty, 520 F.3d 984, 993

(9th Cir. 2008) (en banc). The record does not support this contention. Although

the district court initially stated that Parada-Calderon sold drugs in the United

States, it subsequently recognized that the documents of conviction were

ambiguous as to that question. Moreover, the district court did not err in assessing

the seriousness of Parada-Calderon’s prior convictions.

      Third, Parada-Calderon contends that the sentence is substantively

unreasonable in light of the mitigating factors he presented at sentencing and the


                                           2                                    15-50019
need to avoid unwarranted sentencing disparities. The district court did not abuse

its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentence is

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

of the circumstances, including Parada-Calderon’s criminal record and

immigration history. See Gall, 552 U.S. at 51. Moreover, the district court did not

abuse its discretion by imposing the term of supervised release as an added

measure of deterrence. See U.S.S.G. § 5D1.1 cmt. n.5; United States v.

Valdavinos-Torres, 704 F.3d 679, 692-93 (9th Cir. 2012).

      AFFIRMED.




                                          3                                    15-50019
