                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 09 2011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. 09-50578

               Plaintiff - Appellee,             D.C. No. 3:09-cr-01388-BEN

  v.
                                                 MEMORANDUM *
JOSE E. CERVANTES-GUERRA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                            Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Jose E. Cervantes-Guerra appeals from the 57-month sentence imposed

following his 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).
      Cervantes-Guerra contends that the district court’s failure to depart or vary

from the Guidelines to reflect his level of culpability in his prior conviction created

an unwarranted sentencing disparity and resulted in a substantively unreasonable

sentence. The record reflects that the district court considered Cervantes-Guerra’s

individual circumstances with respect to his prior conviction and imposed a

sentence that was substantively reasonable in light of the totality of the

circumstances and the 18 U.S.C. § 3553(a) factors. See Gall v. United States, 552

U.S. 38, 51 (2007).

      Cervantes-Guerra also contends that he was denied the right of allocution.

See Fed. R. Crim. P. 32(i)(4)(A)(ii). This argument lacks merit because the

sentencing court properly provided Cervantes-Guerra the opportunity to speak

earlier in the hearing. See United States v. Leasure, 122 F.3d 837, 840-41 (9th Cir.

1997) (per curiam) (no denial of right of allocution where defendant had “clear and

unrestricted opportunity” to speak during the sentencing hearing but the court

refused to provide additional opportunity after beginning to pronounce defendant’s

sentence).

      AFFIRMED.




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