                                                                             FILED
                                                                              APR 21 2010
                             NOT FOR PUBLICATION
                                                                          MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

                      UNITED STATES COURT OF APPEALS

                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 09-10127

               Plaintiff - Appellee,              D.C. No. 4:08-CR-01219-DSD

  v.
                                                  MEMORANDUM *
TEODORO PENA-SEGURA,

               Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Arizona
                      David S. Doty, District Judge, Presiding

                               Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Teodoro Pena-Segura appeals from the 51-month sentence imposed

following his guilty-plea conviction for illegal re-entry after deportation, in



          *
             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).
violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

      Pena-Segura contends that the district court procedurally erred at sentencing

by failing to consider evidence that supported a downward departure on the basis

of his family circumstances, and that the sentence is substantively unreasonable. A

review of record demonstrates that the district court did not procedurally err and

the sentence is substantively reasonable in light of the factors set forth in 18 U.S.C.

§ 3553(a) and the totality of the circumstances. See Gall v. United States, 552 U.S.

38, 51-52 (2007).

      Nor is the Eighth Amendment implicated by the sentence. See United States

v. Meiners, 485 F.3d 1211, 1213 (9th Cir. 2007) (“[F]ederal courts should be

reluctant to review legislatively mandated terms of imprisonment, and . . .

successful challenges to the proportionality of particular sentences should be

exceedingly rare.”) (internal quotation marks omitted).

      Pena-Segura also contends that the Government acted arbitrarily by

declining to request an additional one-level reduction pursuant to U.S.S.G

§ 3E1.1(b) because Pena-Segura did not accept a plea offer. This contention lacks

merit. See United States v. Medina-Beltran, 542 F.3d 729, 731 (9th Cir. 2008) (per

curiam), cert. denied 130 S. Ct. 168 (2009).


                                           2                                     09-10127
         Pena-Segura further contends that his counsel provided ineffective

assistance. We decline to review Pena-Segura’s ineffective assistance of counsel

claim on direct appeal. See United States v. McKenna, 327 F.3d 830, 845 (9th Cir.

2003).

         AFFIRMED.




                                           3                                  09-10127
