                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 17 2011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. 10-10320

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00452-ECR

  v.
                                                 MEMORANDUM *
LUIS SOTO-GUEVARA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Edward C. Reed, District Judge, Presiding

                            Submitted February 15, 2011 **

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

       Luis Soto-Guevara appeals from the 17-month sentence imposed following

his guilty-plea conviction for being a deported alien found unlawfully 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).
      Soto-Guevara contends that the staleness of his prior conviction and minimal

criminal history renders his sentence substantively unreasonable. In light of the

totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, Soto-

Guevara’s below-Guidelines sentence is substantively reasonable. See United

States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).

      Soto-Guevara also contends that his sentence is unreasonable because his

prior conviction for sale a controlled substance, in violation of California Health &

Safety Code § 11352(a), would not have triggered the 12-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(B) for a prior felony drug trafficking conviction before the

November 1, 2008 amendments. The district court did not plainly err in applying

the enhancement where Soto-Guevara committed the current illegal re-entry

offense following the November 1, 2008 amendment’s addition of “offer to sell” to

the 12-level enhancement.

      Finally, Soto-Guevara contends that his sentence is unreasonable because his

prior sale of a controlled substance conviction does not qualify as an aggravated

felony. The district court did not plainly err because Soto-Guevara concedes his

prior conviction qualified as a drug trafficking offense under U.S.S.G.

§ 2L1.2(b)(1)(B), and thus, the 12-level enhancement was appropriate even though




                                          2                                    10-10320
Soto-Guevara’s prior offense was not a statutory “aggravated felony” under 8

U.S.C. § 1101(a)(43).

      AFFIRMED.




                                        3                                  10-10320
