                                                                             FILED
                            NOT FOR PUBLICATION                                AUG 30 2013

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 12-50322

               Plaintiff - Appellee,            D.C. No. 3:11-cr-05203-WQH

  v.
                                                MEMORANDUM*
JORGE CARVAJAL,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                              Submitted July 30, 2013**

Before:        HUG, CANBY, and LEAVY, Circuit Judges.

       Jorge Carvajal appeals from the district court’s judgment and challenges the

27-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).
      Carvajal contends that his sentence is substantively unreasonable because

the prior conviction triggering an eight-level Guidelines enhancement was stale.

He relies on United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009),

which held a 16-level enhancement unreasonable because it took no account of the

staleness of the conviction that gave rise to the enhancement. Carvajal’s case is

distinguishable, however, because the staleness of Carvajal’s triggering conviction

was taken into account under post-Amezcua amendments to the Guidelines that

resulted in a lower enhancement. In addition, Carvajal had a prior conviction for

re-entry after removal. On this record, the district court did not abuse its discretion

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

(2007). The 27-month sentence at the top of the Guidelines range is substantively

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

the circumstances, including Carvajal’s prior 27-month sentence for violating

section 1326. See id.

      Carvajal’s contention that Almendarez-Torres v. United States, 523 U.S. 224

(1998), was overruled by Nijhawan v. Holder, 557 U.S. 29 (2009), is foreclosed.

See United States v. Valdovinos-Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011).

      AFFIRMED.




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