                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 01 2013

                                                                        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. 12-10011

               Plaintiff - Appellee,             D.C. No. 2:11-cr-00007-KJD

  v.
                                                 MEMORANDUM *
GERARDO REYNA-GONZALEZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                              Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Gerardo Reyna-Gonzalez appeals from the district court’s judgment and

challenges the 57-month sentence and three-year term of supervised release

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




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

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The government contends that the appeal is untimely. We disagree. Reyna-

Gonzalez filed his notice of appeal (“NOA”) as an attachment to a timely motion to

extend time to file an appeal. Because the district court granted that motion and

the NOA was filed within 30 days of the original deadline to file an appeal, this

appeal is timely. See Fed. R. App. P. 4(b)(4).

      Reyna-Gonzalez contends that the district court erred by failing to appreciate

its discretion under Kimbrough v. United States, 552 U.S. 85 (2007), to deviate

from the advisory sentencing Guidelines based on policy differences with the

Guidelines. The district court did not err because the record reflects that the court

was aware of its discretion to deviate and it explained why it chose not to do so.

      Reyna-Gonzalez also contends that his sentence is substantively

unreasonable because the sentence does not account for the staleness of his prior

conviction for a drug trafficking offense, which triggered a 16-level enhancement.

The district court did not abuse its discretion. See Gall v. United States, 552 U.S.

38, 51 (2007). The within-Guidelines sentence is substantively reasonable in light

of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances,

including Reyna-Gonzalez’s criminal history and individual circumstances. See id.


                                           2                                    12-10011
      Reyna-Gonzalez finally contends that the three-year term of supervised

release is substantively unreasonable because the Guidelines ordinarily recommend

against imposing supervised release on deportable aliens. In light of Reyna-

Gonzalez’s continued motive to return to the United States after release and the

need to protect the public, the district court did not abuse its discretion by imposing

the term of supervised release. See U.S.S.G. § 5D1.1 cmt. n.5 (sentencing court

should consider imposing a term of supervised release when “it would provide an

added measure of deterrence and protection based on the facts and circumstances

of a particular case”).

      AFFIRMED.




                                           3                                    12-10011
