                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 02 2013

                                                                        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. 12-50295

               Plaintiff - Appellee,             D.C. No. 3:11-cr-02598-L

  v.
                                                 MEMORANDUM *
GUILLERMO ZAVALA-BOLANOS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    M. James Lorenz, District Judge, Presiding

                           Submitted September 24, 2013 **

Before:        RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Guillermo Zavala-Bolanos appeals from the district court’s judgment and

challenges the 77-month sentence imposed following his guilty-plea conviction for

attempted entry 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).
      Zavala-Bolanos contends that the district court procedurally erred by relying

on the erroneous belief that he had multiple reentries. We review for plain error,

see United States v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008), and find none.

The record reflects that, although the district court referenced multiple reentries, it

subsequently indicated that Zavala-Bolanos had only one official deportation.

Moreover, to the extent the district court erred, the error did not affect Zavala-

Bolanos’s substantial rights. See id.

      Zavala-Bolanos also contends that the district court abused its discretion by

failing to depart downward on the basis of his cultural assimilation. Our review of

a district court’s exercise of discretion to depart or vary on the basis of cultural

assimilation is subsumed in our review of whether the court imposed a

substantively reasonable sentence. See United States v. Ellis, 641 F.3d 411, 421-22

(9th Cir. 2011). The court did not abuse its discretion in imposing Zavala-

Bolanos’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The

within-Guidelines sentence is substantively reasonable in light of the totality of the

circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a),

including his criminal history and the need for deterrence. See id.

      Zavala-Bolanos’s contention that Almendarez-Torres v. United States, 523

U.S. 224 (1998), was overruled is foreclosed. See United States v. Valdovinos-

Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011).

      AFFIRMED.

                                            2                                     12-50295
