                                                                              FILED
                                NOT FOR PUBLICATION                            SEP 11 2012

                                                                          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. 11-50478

              Plaintiff - Appellee,                D.C. No. 3:11-cr-03190-GT-1

  v.
                                                   MEMORANDUM *
ROMEO LOPEZ-HERNANDEZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                 Gordon Thompson, Senior District Judge, Presiding

                               Submitted September 6, 2012**
                                   Pasadena, California

Before:     KOZINSKI, Chief Judge, WATFORD and HURWITZ, Circuit
      Judges.

       Romeo Lopez-Hernandez challenges his sentence to twenty-four months’

incarceration and three years’ supervised release for illegally entering the United

States after being deported.



        *
             This disposition isn’t appropriate for publication and isn’t 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).
                                                                                 page 2

      1. Lopez-Hernandez’s sentence to twenty-four months’ incarceration is less

than the statutory maximum of ten years, but six months above the maximum

recommended by the federal Sentencing Guidelines. The Sentencing Guidelines are

only advisory. Gall v. United States, 128 S. Ct. 586, 594 (2007). As directed by 18

U.S.C. § 3553(a), the sentencing judge weighed several factors, including the

recommendation of the Sentencing Guidelines, the fact that Lopez-Hernandez had

been thrice convicted of illegal entry and the fact that he was previously sentenced to

eighteen months for the same offense. The judge didn’t abuse his discretion by giving

him six additional months.


      2. As Lopez-Hernandez’s attorney told the judge at sentencing, the Sentencing

Guidelines recommend against imposing supervised release on deportable aliens under

“ordinar[y]” circumstances. See U.S. Sentencing Guidelines Manual § 5D1.1(c). But

Lopez-Hernandez’s circumstances are not ordinary. Supervised release is appropriate

for deportable aliens when “it would provide an added measure of deterrence and

protection.” U.S. Sentencing Guidelines Manual § 5D1.1 cmt. 5. As the sentencing

judge noted, Lopez-Hernandez was “violating supervised release” when he committed

the offense, so additional supervised release was warranted.


      AFFIRMED.
