                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 04 2010

                                                                        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. 09-30363

               Plaintiff - Appellee,             D.C. No. 9:09-cr-00004-DWM

  v.
                                                 MEMORANDUM *
ALFONZO HECTOR PENA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Alfonzo Hector Pena appeals from the 188-month sentence imposed

following his guilty-plea conviction for possession with intent to sell of 50 grams

or more of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). We

have jurisdiction pursuant to 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).
      Pena contends that his sentence is substantively unreasonable because the

career offender enhancement under U.S.S.G. § 4B1.1(a) over-represents the

seriousness of Pena’s past offenses and does not account for the nature and

circumstances of the offense or Pena’s history and characteristics. The record

reflects that the district court correctly determined that the career offender

enhancement applies, that it has considered and addressed all of the factors set

forth in 18 U.S.C. § 3553(a), and that it did not otherwise procedurally err. See

United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc); see also

United States v. Diaz-Argueta, 564 F.3d 1047, 1051-52 (9th Cir. 2009). The

record further reflects that, under the totality of the circumstances, Pena’s sentence

is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51-52 (2007);

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

      AFFIRMED.




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