                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 17 2011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. 09-50504

              Plaintiff - Appellee,              D.C. No. 2:08-cr-01121-RGK-1

  v.
                                                 MEMORANDUM *
FAUSTO TURCIOS CALDERON, AKA
Fausto Calderon, AKA Juan Carlos
Calderon,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                              Submitted June 9, 2011 **
                                Pasadena, California

Before: BEEZER, TROTT, and RYMER, Circuit Judges.

       Fausto Turcios Calderon appeals the district court’s imposition in 2009 of a

below-Guidelines sentence for illegal reentry after deportation in violation of 8


        *
             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).
U.S.C. § 1326. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. §

1291, and we affirm.

         After the district court sentenced Turcios Calderon to 48 months in prison,

the United States Sentencing Commission added Application Note 8 to § 2L1.2 of

the United States Sentencing Guidelines. This Application Note states that cultural

assimilation may be, in certain § 1326 cases, an appropriate basis for a downward

departure. See U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.8 (2010).

Turcios Calderon argues that the Application Note is retroactive and that his

sentence should be vacated and remanded so the district court can consider the new

Application Note at resentencing.

         We do not reach the question of whether Application Note 8 is retroactive

because -- even assuming it is retroactive -- the district court already considered

cultural assimilation in imposing Turcios Calderon’s below-Guidelines sentence.

Our law has recognized since 1998 the authority of a sentencing court to depart

downward based on a defendant’s cultural assimilation if the cultural ties to the

United States so warrant. United States v. Lipman, 133 F.3d 726, 730-32 (9th Cir.

1998).

         At sentencing, Turcios Calderon argued under Lipman that his cultural and

family ties -- including the age at which he came to the United States, his long


                                            2
residency in this country, his attendance of school here, and the citizen status of his

family members -- justified a sentence below the Guidelines range. The district

court’s remarks at the sentencing hearing reveal that the district court considered

and accepted that argument, imposing a sentence a full 22 months below the low

end of the Guidelines range of 70 to 87 months.

      Turcios Calderon’s other argument, that his 48-month sentence is

substantively unreasonable, fails because the district court appropriately exercised

its discretion in determining the length of the sentence. See United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc). Because we are dealing with a non-

Guidelines sentence, “we are to ‘give due deference to the district court’s decision

that the § 3553(a) factors, on a whole, justify the extent of the variance.’” Id.

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Turcios Calderon’s

extensive criminal history certainly justifies the district court’s decision not to

grant a greater downward departure. Turcios Calderon asked the district court for a

sentence “significantly lower than the guideline sentence” -- which is exactly what

he got.

      AFFIRMED.




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