                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 08 2011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. 10-50352

               Plaintiff - Appellee,             D.C. No. 3:09-cr-03028-JLS

  v.
                                                 MEMORANDUM *
JUAN CARLOS SANTILLAN,

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Southern District of California
                    Janis L. Sammartino, District Judge, Presiding

                           Submitted November 8, 2011 **

Before:        O’SCANNLAIN, TASHIMA, and GRABER, Circuit Judges.

       Juan Carlos Santillan appeals from the 78-month sentence imposed

following his guilty-plea convictions for attempted entry after deportation, in

violation of 8 U.S.C. § 1326, and making a false claim to United States citizenship,




          *
             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).
in violation of 18 U.S.C. § 911. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      Santillan contends that the district court procedurally erred by failing to

consider his request for a cultural assimilation departure, failing to explain its

decision not to depart, and failing to appreciate its authority to depart. The record

shows that the court entertained Santillan’s arguments regarding the departure, and

Santillan has not established that his sentence would have been different absent the

alleged error. See United States v. Lipman, 133 F.3d 726, 730-32 (9th Cir. 1998)

(cultural assimilation is a permissible basis for departure); United States v.

Dallman, 533 F.3d 755, 762 (9th Cir. 2008) (defendant’s burden to demonstrate

reasonable probability that sentence would have been different absent procedural

error); cf. U.S.S.G. § 2L1.2, cmt. n.8 (cultural assimilation may be proper basis for

departure under 2010 Sentencing Guidelines where it is not likely to increase risk

to public from defendant’s further crimes).

      Santillan contends that his sentence was substantively unreasonable. Our

review of a decision not to vary or depart considers only whether the resulting

sentence was substantively reasonable. See United States v. Ellis, 641 F.3d 421-

22 (9th Cir. 2011). The sentence in the middle of the Guidelines range was not

substantively unreasonable in light of the totality of the circumstances and the


                                            2                                    10-50352
18 U.S.C. § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 51

(2007).

      AFFIRMED.




                                         3                                  10-50352
