                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 05 2010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. 09-50573

               Plaintiff - Appellee,              D.C. No. 3:09-cr-00995-JAH

  v.
                                                  MEMORANDUM *
LUIS ANGEL HERNANDEZ-RIOS,

               Defendant - Appellant.



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

                           Submitted September 13, 2010 **

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

       Luis Angel Hernandez-Rios appeals from the 60-month sentence imposed

following his guilty-plea conviction for transportation of illegal aliens and aiding

and abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II); and high

speed flight from an immigration checkpoint, in violation of 18 U.S.C. § 758. We

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

      Hernandez-Rios contends that the district court placed undue emphasis on

aggravating circumstances that were already taken into account by the Sentencing

Guidelines and the 18 U.S.C. § 3553(a) sentencing factors when it imposed an

upward departure from the advisory Guidelines range. The district court departed

upward by two levels, pursuant to U.S.S.G. § 5K2.0, based upon a combination of

circumstances that were not adequately taken into consideration by the Guidelines.

The record reflects that the district court carefully considered the § 3553(a)

sentencing factors, including the need to avoid unwarranted sentencing disparities,

and provided a well-reasoned and thorough explanation for the sentence imposed.

The district court did not procedurally err, and the sentence is substantively

reasonable under the totality of the circumstances. See Gall v. United States, 552

U.S. 38, 51 (2007); see also United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2008) (en banc).

      AFFIRMED.




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