                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 02 2010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. 09-50516

               Plaintiff - Appellee,             D.C. No. 3:09-cr-02601-DMS

  v.
                                                 MEMORANDUM *
NICASIO CRUZ-GARCIA, a.k.a. Silvo
Cruz Garcia,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                              Submitted July 19, 2010 **

Before:        B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       Nicasio Cruz-Garcia appeals from the 30-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 under 28 U.S.C. § 1291, and


          *
             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).
we affirm.

      Cruz-Garcia’s contention that his conviction under California Health and

Safety Code section 11359 does not constitute a drug trafficking offense for

purposes of the Sentencing Guidelines is foreclosed. See United States v.

Martinez-Rodriguez, 472 F.3d 1087, 1097 (9th Cir. 2007). The district court

properly considered Cruz-Garcia’s other prior convictions under 18 U.S.C.

§ 3553(a). We need not decide whether the district court erred by considering

Cruz-Garcia’s arrests because Cruz-Garcia fails to establish that any error affected

his substantial rights. See United States v. Waknine, 543 F.3d 546, 553 (9th Cir.

2008) (describing plain error standard). Under the totality of the circumstances,

the bottom-of-the-Guidelines sentence imposed by the district court was

substantively reasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2008) (en banc). Given Cruz-Garcia’s criminal history, we reject his contention

that his sentence is substantively unreasonable under our decision in United States

v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009). See id. at 1055-56

(Guidelines-range sentence determined largely by a 16-level enhancement for a

prior conviction was unreasonable where the prior conviction was twenty-five

years old and defendant had no subsequent convictions for harming others).

      AFFIRMED.


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