                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 1 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50069

               Plaintiff - Appellee,             D.C. No. 3:13-cr-03519-BEN

  v.
                                                 MEMORANDUM*
FABIAN SANTILLAN,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                           Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       Fabian Santillan appeals from the district court’s judgment and challenges

the 16-month sentence imposed following his guilty-plea conviction for attempted

reentry of a removed alien, 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).
      Santillan contends that the district court erred by refusing to grant the

government’s motion for a recommended fast-track departure under U.S.S.G.

§ 5K3.1. “In analyzing challenges to a court’s upward and downward departures

. . . under Section 5K, we do not evaluate them for procedural correctness, but

rather, as part of a sentence’s substantive reasonableness.” United States v. Ellis,

641 F.3d 411, 421 (9th Cir. 2011). The 16-month sentence is substantively

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

circumstances, including Santillan’s criminal and immigration history. See Gall v.

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

      Santillan also contends that the district court failed to use the correctly

calculated Guidelines as a starting point because it had already arrived at its

preferred sentence before calculating the Guidelines range. We review for

harmless error, see United States v. Munoz-Camarena, 631 F.3d 1028, 1030 & n.5

(9th Cir. 2011) (per curiam), and we find no error. The record reflects that the

district court used the correctly calculated Guidelines as its starting point when

determining the sentence. See United States v. Evans-Martinez, 611 F.3d 635, 643

(9th Cir. 2010) (“[I]t is the pre-departure Guidelines sentencing range that the

district court must correctly calculate.”).

      AFFIRMED.


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