                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 29 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50386

               Plaintiff - Appellee,             D.C. No. 3:14-cr-00509-JLS

 v.
                                                 MEMORANDUM*
PONCIANO MATA,

               Defendant - Appellant.


                     Appeal from the United States District Court
                        for the Southern District of California
                    Janis L. Sammartino, District Judge, Presiding

                              Submitted June 22, 2015**

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

      Ponciano Mata appeals from the district court’s judgment and challenges the

60-month sentence imposed following his guilty-plea conviction for attempted

reentry of a removed alien, 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).
      Mata contends that his sentence is substantively unreasonable because his

Guidelines range was artificially inflated on the basis of a 2002 conviction that

would have scored fewer points had he not demonstrated ineffective assistance of

counsel in connection with his 1997 guilty plea. The district court did not abuse its

discretion in imposing Mata’s sentence. See Gall v. United States, 552 U.S. 38, 51

(2007). The district court entertained Mata’s arguments about his prior conviction

and agreed to impose a below-Guidelines sentence. The 60-month sentence is

substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and

the totality of the circumstances, including Mata’s criminal and immigration

history, failure to be deterred by prior sentences, and danger to the public. See

Gall, 552 U.S. at 51.

      Mata also contends that his sentence should not have exceeded two years

because the fact of the prior conviction that subjected him to enhanced penalties

under 8 U.S.C. § 1326(b) was neither alleged in the information nor admitted by

him. As Mata acknowledges, the Supreme Court rejected this argument in

Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998), which has not

been overruled. See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013).

We, accordingly, remain bound by Almendarez-Torres. See United States v.

Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per curiam).

      AFFIRMED.


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