                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 22 2012

                                                                        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. 10-50260

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00918-PA

  v.
                                                 MEMORANDUM *
GUILLERMO ERNEST VASQUEZ-
CHAVEZ, a.k.a. Ernest Vasquez Chavez,
a.k.a. Guillermo Ernesto Vasquez Chavez,
a.k.a. Ernesto Guillermo Vasquez, a.k.a.
Guillermo Ernesto Vasquez,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                            Submitted February 21, 2012 **

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Guillermo Ernest Vasquez-Chavez appeals from the 100-month sentence




          *
             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. Appellant. P. 34(a)(2).
imposed following his jury-trial conviction for being an illegal alien found in the

United States following deportation, in violation of 8 U.S.C. § 1326. We have

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

         Vasquez-Chavez contends that the district court procedurally erred by failing

to grant a two-point downward adjustment to his offense level for acceptance of

responsibility under U.S.S.G. § 3E1.1. In light of the record before the district

court, there was no clear error. See United States v. Hopper, 27 F.3d 378, 381-82

(9th Cir. 1994); United States v. Molina, 596 F.3d 1166, 1169-70 (9th Cir. 2010)

(“[C]onflicting stories weigh against a finding that [defendant] accepted

responsibility for his actions.”).

         Vasquez-Chavez also contends that the district court procedurally erred by

failing to grant a downward departure under U.S.S.G. § 5K2.12. This contention is

without merit, where the record shows that the district did not procedurally err and

“any deviation from the applicable advisory guidelines range will be viewed as an

exercise of the district court’s post-Booker discretion and reviewed only for

reasonableness.” See United States v. Mohamed, 459 F.3d 979, 987 (9th Cir.

2006).

         In his reply brief, Vasquez-Chavez contends that his sentence is

substantively unreasonable. In light of the totality of the circumstances and the


                                            2                                    10-50260
section 3553(a) sentencing factors, the sentence is substantively reasonable. See

Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Franco-

Lopez, 312 F.3d 984, 993 n.6 (9th Cir. 2002) (though appellant cannot raise new

issues in the reply brief, the court may consider the issue if it was addressed by the

government in its brief).

      Vasquez-Chavez further contends that the district court plainly erred in

imposing as a condition of supervised release that he may not associate with

“persons associated with the 18th Street gang.” After sentencing, this court

concluded that this proscription is impermissibly vague and entails a deprivation of

liberty that is greater than necessary to achieve rehabilitative goals. See United

States v. Johnson, 626 F.3d 1085, 1090-91 (9th Cir. 2010). We therefore vacate

this portion of Vasquez-Chavez’s sentence and remand to the district court to

revise the sentence with the benefit of our holding in Johnson.

      Finally, we decline to consider Vasquez-Chavez’s request to have the case

reassigned to a different judge on remand. See Bazuaye v. INS, 79 F.3d 118, 120

(9th Cir. 1996) (per curiam) (“Issues raised for the first time in the reply brief are

waived.”)

      AFFIRMED in part, VACATED in part and REMANDED.




                                            3                                    10-50260
