                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 01 2012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. 11-10213

               Plaintiff - Appellee,             D.C. No. 2:10-cr-00184-EJG

  v.
                                                 MEMORANDUM *
HERIBERTO SUAREZ-AGUILAR,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Edward J. Garcia, District Judge, Presiding

                            Submitted February 21, 2012 **

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Heriberto Suarez-Aguilar appeals from the 57-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.




          *
             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).
§ 1291, and we affirm.

      Suarez-Aguilar contends that his sentence is substantively unreasonable

because the district court did not vary downward from the Guidelines range based

on the “staleness” of his prior conviction, which served as the predicate for a 16-

level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). He also contends that the

district court erred by failing to vary downward based on a proposed amendment to

U.S.S.G. § 2L1.2(b) that was pending at the time he was sentenced.

      In light of the totality of the circumstances, including the seriousness of

Suarez-Aguilar’s prior conviction and his multiple prior deportations, the within-

Guidelines sentence is not substantively unreasonable. See 18 U.S.C. § 3553(a);

Gall v. United States, 552 U.S. 38, 51 (2007). Furthermore, the district court’s

failure to grant the requested variance to reflect the proposed amendment to the

Guidelines did not result in a substantively unreasonable sentence. See United

States v. Ruiz-Apolonio, 657 F.3d 907, 918 (9th Cir. 2011) (“That the Commission

has promulgated a not-yet-adopted amendment that is very likely to be adopted and

that would result in reduced Guidelines ranges does not render a district court’s

failure to grant a variance substantively unreasonable.”).

      AFFIRMED.




                                          2                                     11-10213
