                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 31 2012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. 12-30060

               Plaintiff - Appellee,             D.C. No. 2:11-cr-00123-JCC

  v.
                                                 MEMORANDUM *
VICENTE CERVANTES-AVALOS,

               Defendant - Appellant.



                     Appeal from the United States District Court
                       for the Western District of Washington
                    John C. Coughenour, District Judge, Presiding

                           Submitted December 19, 2012 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Vicente Cervantes-Avalos appeals from the district court’s judgment and

challenges the 45-month and one-week sentence imposed following his bench-trial

conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. We




          *
             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).
have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Cervantes-Avalos contends that the district court procedurally erred by

failing to explain the sentence and by relying on the clearly erroneous premise that

he had illegally returned to the United States to sell drugs. We review for plain

error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.

2010), and find none. The district court reviewed all of the evidence submitted,

listened to the mitigating arguments, and considered the 18 U.S.C. § 3553(a)

factors. Nothing more was required. See Rita v. United States, 551 U.S. 338, 358-

59 (2007). Further, the court properly considered Cervantes-Avalos’s history of

drug offenses in the context of the need for deterrence and to protect the public. It

did not choose the sentence based on clearly erroneous facts. See United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

      Cervantes-Avalos next contends that his sentence is substantively

unreasonable. Under the totality of the circumstances, including Cervantes-

Avalos’s history of immigration violations, the below-Guidelines sentence is

substantively reasonable. See 18 U.S.C. § 3553(a); Gall v. United States, 552 U.S.

38, 51 (2007).

      AFFIRMED.




                                          2                                     12-30060
