                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 27 2012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. 11-50160

               Plaintiff - Appellee,             D.C. No. 3:10-cr-01915-JAH

  v.
                                                 MEMORANDUM *
GUALBERTO BAHENA-CARRENO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                            Submitted January 17, 2012 **

Before:        LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.

       Gualberto Bahena-Carreno appeals from the 36-month sentence imposed

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

violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and


          *
             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).
we affirm.

      Bahena-Carreno contends that the district court procedurally erred in

denying a downward departure for cultural assimilation because the court

misapplied the parameters for granting a departure and relied on clearly erroneous

facts. The district court did not plainly err. The record does not reflect that

Bahena-Carrena requested a downward departure. Moreover, the court entertained

Bahena-Carreno’s arguments as part of its consideration of the 18 U.S.C.

§ 3553(a), granted a downward variance based on the staleness of Bahena-

Carreno’s prior conviction, and explained why a further variance was not

warranted. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en

banc); 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).

      Bahena-Carreno also contends that his sentence is substantively

unreasonable. In light of the totality of the circumstances and the section 3553(a)

sentencing factors, the sentence is substantively reasonable. See Gall v. United

States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




                                           2                                      11-50160
