                                                                            FILED
                            NOT FOR PUBLICATION                             APR 22 2013

                                                                        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. 11-10628

               Plaintiff - Appellee,             D.C. No. 5:10-cr-00858-DLJ

  v.
                                                 MEMORANDUM *
JOSE CUEVAS-ESTRADA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                    D. Lowell Jensen, District Judge, Presiding

                             Submitted April 16, 2013 **

Before:        CANBY, IKUTA, and WATFORD, Circuit Judges.

       Jose Cuevas-Estrada appeals from the district court’s judgment and

challenges the 57-month sentence imposed following his guilty-plea conviction for

illegal reentry following deportation, in violation of 8 U.S.C. § 1326. We have




          *
             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).
jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Cuevas-Estrada contends that the district court abused its discretion by

denying his request for a cultural assimilation departure on the basis of a clearly

erroneous fact, and by denying his request for a downward departure in his

criminal history category. This court does not review the denial of a departure;

rather, our review is limited to determining whether the court imposed a

substantively reasonable sentence. See United States v. Vasquez-Cruz, 692 F.3d

1001, 1008 (9th Cir. 2012). The substantive reasonableness of a sentence is

reviewed for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51

(2007).

      Contrary to Cuevas-Estrada’s contention, the district court did not abuse its

discretion in imposing his sentence. The court varied downward from the advisory

Sentencing Guidelines range because it believed that the 16-level enhancement for

Cuevas-Estrada’s prior offense was excessive. The sentence is substantively

reasonable in light of the totality of the circumstances and the sentencing factors

set forth in 18 U.S.C. § 3553(a), including the need to deter and to protect the

public. See Gall, 552 U.S. at 51.

      AFFIRMED.




                                           2                                     11-10628
