                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 11 2011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. 10-50523

               Plaintiff - Appellee,             D.C. No. 3:10-cr-00713-JLS

  v.
                                                 MEMORANDUM *
WILLIAM CALDERON-PEREZ,

               Defendant - Appellant.



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

                             Submitted August 2, 2011 **

Before:        RYMER, IKUTA, and N.R. SMITH, Circuit Judges.

       William Calderon-Perez appeals from the 46-month sentence imposed

following his guilty-plea conviction for being a deported 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).
      Calderon-Perez first contends that the district court erred by mechanically

applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). The record

shows that the district court permissibly applied the enhancement, and properly

considered the factors set forth in 18 U.S.C. § 3553(a) and the totality of the

circumstances. See Kimbrough v. United States, 552 U.S. 85, 108-11 (2007)

(holding that a court may but is not required to vary from the recommendations of

the Sentencing Commission even assuming that the Guideline is not based on

empirical data or national experience).

      Calderon-Perez next contends that the court imposed an impermissibly high

sentence because it exceeded the statutory maximum established by his admissions

and the Sentencing Guidelines. The district court did not err because the sentence

did not exceed the statutory maximum, as established by the statute of conviction.

See United States v. Booker, 543 U.S. 220, 756-57 (2005); United States v.

Ameline, 409 F.3d 1073, 1077-78 (9th Cir. 2005) (en banc) (stating that Booker

remedied the Sixth Amendment infirmity by making the Guidelines advisory); see

also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (ruling that fact of prior

conviction need not be submitted to a jury and proved beyond a reasonable doubt).

      Calderon-Perez’s third contention is that the district court relied upon

insufficient documentation to find by clear and convincing evidence that he had in


                                           2                                      10-50523
fact committed and was convicted of the offense used to enhance the offense level

in the Guidelines calculation. The uncontroverted pre-sentence report provides

clear and convincing evidence that Calderon-Perez was convicted of the prior

offense. See United States v. Romero-Rendon, 220 F.3d 1159, 1161-64 (9th Cir.

2000).

         Lastly, his contentions concerning Almendarez-Torres are foreclosed. See

United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir. 2006).

         AFFIRMED.




                                           3                                 10-50523
