                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 22 2011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. 11-30080

               Plaintiff - Appellee,             D.C. No. 2:10-cr-00126-RMP

  v.
                                                 MEMORANDUM *
ALFREDO PORTILLO-ESCALANTE,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Eastern District of Washington
                  Rosanna Malouf Peterson, Chief Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Alfredo Portillo-Escalante appeals from the 77-month sentence imposed

following his guilty-plea conviction for being an alien in the United States after

deportation, 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).
      Portillo-Escalante contends that his sentence is substantively unreasonable.

In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors, the

bottom-of-the-Guideline sentence is substantively reasonable. See Gall v. United

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

      Portillo-Escalante further contends that his prior conviction sentencing

enhancement under U.S.S.G. § 2L1.2(b)(1)(D) is per se unreasonable. His

argument is foreclosed. See United States v. Barsumyan, 517 F.3d 1154, 1159 (9th

Cir. 2008) (policy-based argument against the Guidelines must be asserted on the

ground that its operation in a particular case results in a sentence that is

unreasonable under § 3553(a)).

      Lastly, Portillo-Escalante’s contention that imposition of his 16-level

enhancement is an Apprendi violation is foreclosed. See Almendarez-Torres v.

United States, 523 U.S. 224 (1998).

      AFFIRMED.




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