                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 29 2011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. 10-10252
                                                  No. 10-10253
               Plaintiff - Appellee,

  v.                                              D.C. No. 4:09-cr-50163-JMR
                                                  D.C. No. 4:09-cr-01219-JMR
FAUSTO ALDAY-ARVIZO, a.k.a.
FAUSTO ALDAY,
                                                  MEMORANDUM *
               Defendant - Appellant.

                    Appeal from the United States District Court
                             for the District of Arizona
                    John M. Roll, Chief District Judge, Presiding

                                                        **
                              Submitted June 15, 2011

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Fausto Alday-Arvizo appeals from the 57-month sentence imposed

following his guilty-plea conviction for reentry after deportation, in violation of

8 U.S.C. § 1326, and the 6-month sentence imposed upon revocation of his

supervised release in connection with a 2003 drug-trafficking conviction. We have



          *
             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).
jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Alday-Arvizo contends that his due process rights under Brady v. Maryland,

373 U.S. 83 (1963), were violated by the government’s failure to disclose

information relating to his work with the Drug Enforcement Administration

(“DEA”) as a confidential informant (“CI”). The record reflects that the issue was

discussed with the district court and that the government represented to the court

that the DEA ordinarily will neither confirm nor deny an individual’s work as a CI.

Although “the DEA cannot undermine Brady by keeping exculpatory evidence out

of the prosecutor's hands,” United States v. Blanco, 392 F.3d 382, 394 (9th Cir.

2004) (internal quotations omitted), the claim fails because Alday-Arvizo

“possessed the salient facts regarding the existence of the records that he claims

were withheld” but never invoked court process by subpoenaing the DEA

materials, see Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006).

      Alday-Arvizo also contends that the district court could have relied upon the

statements in the uncontroverted presentence report regarding his alleged

cooperation with the DEA to mitigate his sentence. The record reflects that the

district court did consider Alday-Arvizo’s contentions of cooperation. Nothing in

either Fed. R. Crim. P. 32 or United States v. Romero-Rendon, 220 F.3d 1159 (9th

Cir. 2000), required the court to do more.

      AFFIRMED.
