                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 23 2011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. 10-10239

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00376-MCE

  v.
                                                 MEMORANDUM *
GERARDO ANTONIO CAISHPAL-
HERNANDEZ,

               Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Eastern District of California
                  Morrison C. England Jr., District Judge, Presiding

                            Submitted February 15, 2011 **

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

       Gerardo Antonio Caishpal-Hernandez appeals from the 70-month sentence

imposed following his guilty-plea conviction for being a deported alien found in




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

U.S.C. § 1291, and we affirm.

         Caishpal-Hernandez contends that the district court procedurally erred by

failing to explain sufficiently the sentence imposed and to address the arguments

he presented for a below-Guidelines sentence. The record reflects that the district

court provided a reasoned explanation for the sentence and adequately addressed

Caishpal-Hernandez’s arguments in mitigation to allow for meaningful appellate

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

banc).

         Caishpal-Hernandez also contends that his sentence is substantively

unreasonable because it is exceptionally harsh relative to other individuals

convicted of illegal reentry and was imposed to discourage reentry defendants from

exercising their constitutional rights. In light of the totality of the circumstances

and the factors set forth in 18 U.S.C. § 3553(a), the district court’s sentence is not

substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51 (2007);

United States v. Carty, 520 F.3d 984, 993-94 (9th Cir. 2008) (en banc). Moreover,

nothing in the record suggests that the district court imposed the sentence as

punishment for Caishpal-Hernandez’s decision to reject the proposed fast-track




                                            2                                    10-10239
plea agreement. See United States v. Vasquez-Landaver, 527 F.3d 798, 805-06

(9th Cir. 2009).

      AFFIRMED.




                                       3                                 10-10239
