                                                                              FILED
                             NOT FOR PUBLICATION                               MAR 31 2010

                                                                         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. 09-50303

               Plaintiff - Appellee,             D.C. No. 3:08-CR-02023-TJW

   v.
                                                 MEMORANDUM *
 MIGUEL ANGEL AVILA-QUEZADA,

               Defendant - Appellant.



                     Appeal from the United States District Court
                       for the Southern District of California
                     Thomas J. Whelan, District Judge, Presiding

                              Submitted March 16, 2010 **

Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Miguel Angel Avila-Quezada appeals from the 57-month sentence imposed

following his guilty-plea conviction for being a deported alien found in the United

States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to

          *
             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).

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28 U.S.C. § 1291, and we affirm.

         Avila-Quezada contends that the district court procedurally erred by, among

other things, applying a 16-level enhancement pursuant to U.S.S.G. §

2L1.2(b)(1)(A)(ii) because there was insufficient evidence as to the nature of his

predicate conviction. The district court did not err by relying on the

uncontroverted pre-sentence report to determine that Avila-Quezada’s conviction

was categorically a violent felony. See United States v. Romero-Rendon, 220 F.3d

1159, 1165 (9th Cir. 2000); see also United States v. Heron-Salinas, 566 F.3d 898,

899 (9th Cir. 2009) (per curiam).

         Next, he asserts that the fact of the prior conviction was required to be

charged in the indictment, submitted to a jury, and proven beyond a reasonable

doubt. This contention lacks merit. See Almendarez-Torres v. United States,

523 U.S. 224, 226-27 (1998); see also United States v. Almazan-Becerra, 482 F.3d

1085, 1091 (9th Cir. 2007).

         Avila-Quezada also contends that the district court insufficiently explained

why it rejected his downward-departure motion for cultural assimilation. This

contention is belied by the totality of the record, which contained an adequate

explanation. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en

banc).


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       Finally, he argues his sentence is substantively unreasonable pursuant to

United States v. Amezcua-Vasquez, 567 F.3d 1050, 1058 (9th Cir. 2009), because,

among other reasons, his qualifying crime-of-violence conviction was too stale.

However, in the instant case, unlike the offense in Amezcua-Vasquez, the predicate

felony was not too old to score under the Sentencing Guidelines’ criminal history

provisions. See U.S.S.G. § 4A1.2(e)(1); see also Amezcua-Vasquez, 567 F.3d at

1058 (“We make no pronouncement as to the reasonableness of a comparable

sentence were Amezcua’s conviction more recent[.]”). The record reflects that the

sentence imposed was substantively reasonable, under the totality of the

circumstances. See Gall v. United States, 552 U.S. 38, 53-60 (2007).

       AFFIRMED.




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