                                                                             FILED
                            NOT FOR PUBLICATION                               OCT 27 2011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. 11-30003

               Plaintiff - Appellee,              D.C. No. 1:10-cr-30040-PA

  v.
                                                  MEMORANDUM *
RAUL HERNANDEZ-FRANCO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                            Submitted October 25, 2011 **

Before:        TROTT, GOULD, and RAWLINSON, Circuit Judges.

       Raul Hernandez-Franco appeals from the 57-month sentence imposed

following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C.

§ 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Hernandez-Franco contends the district court procedurally erred by failing

          *
             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).
to address his arguments relating to the intra-district disparity created by the

government’s refusal to offer him a “fast track” plea agreement. The record

reflects that the district court listened to and considered Hernandez-Franco’s

arguments in this regard, but found the circumstances insufficient to warrant a

sentence lower than the one imposed. See United States v. Carty, 520 F.3d 984,

995-96 (9th Cir. 2008) (en banc); see also United States v. Banuelos-Rodriguez,

215 F.3d 969, 976 (9th Cir. 2000) (en banc) (“Courts generally have no place

interfering with a prosecutor’s discretion regarding whom to prosecute, what

charges to file, and whether to engage in plea negotiations.”).

      Hernandez-Franco also contends his sentence is substantively unreasonable

because it is based on a 16-level enhancement under U.S.S.G. § 2L1.2(b) which

lacks any empirical basis and triple counts his criminal history. The sentence is

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

the totality of the circumstances. See Carty, 520 F.3d at 993.

      AFFIRMED.




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