                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 08 2011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. 10-50531

               Plaintiff - Appellee,             D.C. No. 3:10-cr-01289-LAB

  v.
                                                 MEMORANDUM *
LEO NICOLAS GASGA-AMAYA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                           Submitted November 8, 2011 **

Before:        O’SCANNLAIN, TASHIMA, and GRABER, Circuit Judges.

       Leo Nicolas Gasga-Amaya appeals from the 60-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).
      Gasga-Amaya contends that the district court committed procedural error by

imposing an upward variance largely on the basis of its perceived need for

deterrence notwithstanding Gasga-Amaya’s promise not to return to the United

States. The district court did not commit procedural error. See United States v.

Carty, 520 F.3d 984, 991-92 (9th Cir. 2008) (en banc).

      Gasga-Amaya also contends that the district court committed procedural

error by failing to explain adequately its rationale for imposing an upward variance

under 18 U.S.C. § 3553(a) and by failing to follow the proper procedure for

imposing such a variance. The record belies these contentions.

      Lastly, Gasga-Amaya contends that the sentence above the advisory

Sentencing Guidelines range is substantively unreasonable. The 60-month

sentence was substantively reasonable in light of the totality of the circumstances

and the 18 U.S.C. § 3553(a) sentencing factors, particularly the need for the

sentence imposed to reflect the need to afford adequate deterrence. See Gall v.

United States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




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