                                                                            FILED
                                                                             FEB 23 2011
                            NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

                     UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30208

               Plaintiff - Appellee,             D.C. No. 2:10-cr-00012-WFN

  v.
                                                 MEMORANDUM *
JOSE MARIA HERNANDEZ ROJAS,

               Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Wm. Fremming Nielsen, District Judge, Presiding

                            Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Jose Maria Hernandez Rojas appeals from the 42-month sentence imposed

following his guilty-plea conviction for being an alien in the United States after




          *
             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).
deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      Rojas argues that his above-Guidelines sentence is substantively

unreasonable because it is greater than necessary to accomplish the goals of

sentencing. The record reflects that the sentence imposed is substantively

reasonable in light of the totality of the circumstances and the factors set forth in

18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 51-52 (2007); see

also United States v. Orlando, 553 F.3d 1235, 1239 (9th Cir. 2009) (sentence with

upward variance was substantively reasonable where the district court reasonably

found the Guideline sentence insufficient to provide the necessary deterrence, to

address the need for the defendant to learn respect for the law, and to reflect the

nature of the defendant’s criminal history).

      Rojas further contends that his prior conviction sentencing enhancement

under U.S.S.G. § 2L1.2(b)(1)(D) is per se unreasonable. This argument is

foreclosed by United States v. Barsumyan, 517 F.3d 1154, 1159 (9th Cir. 2008)

(policy-based argument against the Guidelines must be asserted on the ground that

its operation in a particular case results in a sentence that is unreasonable under

§ 3553(a)).

      AFFIRMED.


                                           2                                     10-30208
