                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 20 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50511

              Plaintiff-Appellee,                D.C. No. 3:15-cr-01835-DMS

 v.
                                                 MEMORANDUM*
OSCAR JAVIER NOLASCO-TELLEZ,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                          Submitted December 14, 2016**

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

      Oscar Javier Nolasco-Tellez 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 Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Nolasco-Tellez contends that the district court procedurally erred by failing

to consider U.S.S.G. § 4A1.3. We review for plain error, see United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 & n.3 (9th Cir. 2010), and find none.

The district court did not depart upward on the basis that Nolasco-Tellez’s criminal

history category was inadequate. Accordingly, section 4A1.3 was not a “pertinent

policy statement” that the district court was required to consider under 18 U.S.C.

§ 3553(a)(5).

      Nolasco-Tellez next contends that the district court erred under Federal Rule

of Criminal Procedure 32(h) by imposing an above-Guidelines sentence without

providing prior notice. Contrary to Nolasco-Tellez’s contention, the record reflects

that the district court imposed an upward variance based on the 18 U.S.C.

§ 3553(a) factors. Accordingly, the district court was not required to provide

notice under Rule 32(h). See United States v. Moschella, 727 F.3d 888, 893 (9th

Cir. 2013) (“A district court is not required under Rule 32(h) to give advance

notice before imposing a sentence outside of the advisory guideline range if the

sentence is the result of a variance.”).

      Finally, Nolasco-Tellez contends that his sentence is substantively

unreasonable. The district court did not abuse its discretion in imposing

Nolasco-Tellez’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007).


                                           2                                15-50511
The above-Guidelines sentence is substantively reasonable in light of the section

3553(a) sentencing factors and the totality of the circumstances, including

Nolasco-Tellez’s criminal and immigration history as well as his failure to be

deterred by prior sentences. See United States v. Burgos-Ortega, 777 F.3d 1047,

1056–57 (9th Cir. 2015).

      AFFIRMED.




                                          3                                   15-50511
