                                                                                 FILED
                              NOT FOR PUBLICATION                                APR 01 2010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. 08-10535

                Plaintiff - Appellee,             D.C. No. 4:08-CR-00567-JMR

   v.
                                                  MEMORANDUM *
 ERNESTO SOTO-HERRERA,

                Defendant - Appellant.



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

                               Submitted March 16, 2010 **


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

        Ernesto Soto-Herrera appeals from the 56-month sentence imposed

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



          *
             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).

SM S/Research
violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

       Soto-Herrera contends that the district court procedurally erred by failing to

consider the mitigating circumstances presented. He also contends that the district

court imposed a substantively unreasonable sentence. The record indicates that the

district court considered the defense’s arguments in the course of determining

Soto-Herrera’s sentence and therefore did not procedurally err. See Rita v. United

States, 551 U.S. 338, 356-59 (2007); United States v. Carty, 520 F.3d 984, 991-92,

995 (9th Cir. 2008) (en banc). Further, considering the totality of the

circumstances, including the 18 U.S.C. § 3553(a) sentencing factors, the district

court’s sentence below the middle of the Guidelines range was substantively

reasonable. See Carty, 520 F.3d at 993.

       AFFIRMED.




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