                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 20 2012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. 12-50012

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00729-JAK-1

  v.
                                                 MEMORANDUM *
SALVADOR ARELLANO MARTINEZ,
AKA Salvador Martinez Arellano,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                     Argued and Submitted December 4, 2012
                              Pasadena, California

Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.

       The facts are known to the parties. We have jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742. We review for an abuse of discretion. See

United States v. Crowe, 563 F.3d 969, 977 (9th Cir. 2009). We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The defendant argues that the district court misinterpreted the cultural

assimilation departure provision, U.S.S.G. § 2L1.2, application note 8, when it

issued a 35-month sentence to his conviction under 8 U.S.C. §§ 1326(a) and (b)(2)

for illegally reentering the United States. Defendant supposes the misinterpretation

occurred when the district court failed to distinguish ordinary from culturally

motivated economic incentives. However, the 35-month sentence is 11-months

below the undisputed guideline range of 46 to 57 months. To reach the 35-month

sentence, the district court accepted the defendant’s argument as to the

applicability of the cultural assimilation departure provision. Moreover, there is no

evidence on the record that the district court abused its discretion in failing to

distinguish ordinary from culturally motivated economic incentives.

      AFFIRMED




                                            2
