                                                                           FILED
                            NOT FOR PUBLICATION                              OCT 3 2011

                                                                        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. 10-50428

               Plaintiff - Appellee,             D.C. No. 3:10-cr-00307-BEN

  v.
                                                 MEMORANDUM *
ROBERTO OROPEZA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Roberto Oropeza appeals from the 70-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

we affirm.

          *
             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).
      Oropeza contends that the district court procedurally erred at sentencing by

applying “recency points” under Sentencing Guideline § 4A1.1(e) (2009), without

considering the Sentencing Commission’s stated reasons for eliminating the

application of such points in proposed Amendment 742. Oropeza further contends,

for the first time on appeal, that the district court procedurally erred at sentencing

by applying, without explaining, a 16-level enhancement based on the fact that he

was previously deported subsequent to committing a crime of violence. The record

reflects that the district court properly calculated the Guidelines range, considered

the parties’ arguments and the sentencing factors set forth in 18 U.S.C. § 3553(a),

adequately explained the sentence imposed, and that the sentence is procedurally

sound. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc);

see also U.S.S.G. § 1B1.11(a) (directing district courts to “use the Guidelines

Manual in effect on the date that the defendant is sentenced”).

      Oropeza also contends that the sentence is substantively unreasonable. The

record reflects that the district court’s decision not to vary from the Guidelines

range in light of a proposed Guidelines Amendment, which deleted the inclusion of

recency points from a defendant’s criminal history score, was not an abuse of

discretion and that, in light of the totality of the circumstances, the sentence within

the Guidelines range is not substantively unreasonable. See Carty, 520 F.3d at


                                            2                                    10-50428
993; see also United States v. Ruiz-Apolonio, No. 10-50306, 2011 WL 4060803

(9th Cir. Sept. 14, 2011).

      AFFIRMED.




                                       3                                10-50428
