                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 12 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50621

               Plaintiff - Appellee,             D.C. No. 3:13-cr-02485-BEN

  v.
                                                 MEMORANDUM*
GUADALUPE DIAZ-CRUZ,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                           Submitted December 9, 2014**

Before:        WALLACE, LEAVY, and BYBEE, Circuit Judges.

       Guadalupe Diaz-Cruz appeals from the district court’s judgment and

challenges the 36-month sentence imposed following his guilty-plea conviction for

being a removed 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).
      Diaz-Cruz contends that his sentence is substantively unreasonable because

the court failed to grant a downward departure under U.S.S.G. § 4A1.3(b), which

authorizes the district court to depart when the defendant’s criminal history

category overstates the seriousness of his criminal history. Our review of a district

court’s decision whether to depart under section 4A1.3 is limited to determining

whether the court imposed a substantively reasonable sentence. See United States

v. Ellis, 641 F.3d 411, 421-22 (9th Cir. 2011). The district court did not abuse its

discretion in imposing Diaz-Cruz’s sentence. See Gall v. United States, 552 U.S.

38, 51 (2007). The record reflects that the court varied upwards from the parties’

sentencing recommendation in light of Diaz-Cruz’s history of driving under the

influence and immigration violations. The sentence, 12 months above the top of

the advisory Guidelines range, is substantively reasonable in light of the 18 U.S.C.

§ 3553(a) sentencing factors and the totality of the circumstances. See id.

      AFFIRMED.




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