                                                                           FILED
                            NOT FOR PUBLICATION                            APR 11 2014

                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10333

               Plaintiff - Appellee,             D.C. No. 2:13-cr-00326-SMM

  v.
                                                 MEMORANDUM*
EDEN VALDEZ-ANGULO, a.k.a. Eden
Valdez Angulo, a.k.a. Miguel Valdez-
Angulo,

               Defendant - Appellant.


                     Appeal from the United States District Court
                              for the District of Arizona
                   Stephen M. McNamee, District Judge, Presiding

                              Submitted April 7, 2014**

Before:        TASHIMA, GRABER, and IKUTA, Circuit Judges.

       Eden Valdez-Angulo appeals from the district court’s judgment and

challenges the 48-month sentence imposed following his guilty-plea conviction for

reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction


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

      Valdez-Angulo first contends that his sentence is substantively unreasonable

because the imposition of two criminal history points under U.S.S.G. § 4A1.1(d)

turned solely on the “happenstance” of the timing of his discovery by immigration

officials. Relying on United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir.

2009), Valdez-Angulo also contends that his sentence is substantively

unreasonable in light of his limited roles in his prior convictions, one of which

resulted in a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(vii).

      The district court did not abuse its discretion in imposing Valdez-Angulo’s

sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). Unlike the sentence

in Amezcua-Vasquez, Valdez-Angulo’s below-Guidelines sentence properly

reflects the 18 U.S.C. § 3553(a) sentencing factors and the totality of the

circumstances, including Valdez-Angulo’s criminal and immigration history. See

id.

      Finally, Valdez-Angulo contends that Almendarez-Torres v. United States,

523 U.S. 224 (1998), has been undermined and that 8 U.S.C. § 1326(b) is

unconstitutional. As Valdez-Angulo concedes, this argument is foreclosed. See

United States v. Almazan-Becerra, 482 F.3d 1085, 1091 (9th Cir. 2007).

      AFFIRMED.




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