                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 24 2012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. 11-50310

              Plaintiff - Appellee,               D.C. No. 3:11-cr-00227-WQH-1

  v.
                                                  MEMORANDUM *
CARMEN GUADALUPE OLIVA,

              Defendant - Appellant.

                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                             Submitted May 11, 2012 **
                               Pasadena, California

Before: NOONAN and FISHER, Circuit Judges, and GRITZNER, Chief District
Judge.***

       Carmen Guadalupe Oliva appeals from the 48-month sentence imposed by

the district court following her guilty-plea conviction for attempted illegal reentry

        *
             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).
        ***
             The Honorable James E. Gritzner, Chief United States District Judge
for the Southern District of Iowa, sitting by designation.
after deportation, in violation of 8 U.S.C. § 1326. The district court’s Sentencing

Guidelines calculation included a 16-level enhancement under U.S.S.G. §

2L1.2(b)(1)(A)(i) based upon a prior deportation subsequent to a drug trafficking

conviction for which the sentence exceeded 13 months.

      Oliva challenges her sentence on procedural grounds arguing the district

court failed to sua sponte acknowledge its discretion to vary from the Guidelines

based on a policy disagreement that the enhancement lacks an empirical basis and

is not an accurate measure of the gravity of the underlying offense, and by failing

to adequately explain the reasons for its sentence. Oliva also challenges the

substantive reasonableness of the sentence.1 As the facts and procedural history

are familiar to the parties, we recite them here only to the extent necessary to

explain our disposition. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      The district court properly calculated the advisory Guidelines range,

considered the parties’ arguments and the factors under § 3553(a), and imposed a

sentence that represented a 22-month downward variance from the bottom of the

      1
        Oliva initially challenged her change of plea hearing on procedural grounds
but has withdrawn that challenge. Accordingly, appellant’s motion to strike filed
December 29, 2011(ECF No. 15) and appellee’s motions to include certified copy
of recording filed December 22, 2011(ECF No. 10) and December 23, 2011 (ECF
No. 12), are denied as moot.

                                           2
advisory Guidelines range. See United States v. Carty, 520 F.3d 984, 991-93 (9th

Cir. 2008) (en banc) (holding that “only a procedurally erroneous or substantively

unreasonable sentence will be set aside” and that in approaching a sentencing

proceeding the district court must first determine the properly calculated Guide-

lines range, give the parties an opportunity to present arguments regarding an

appropriate sentence, and then consider the sentencing factors set forth in §

3553(a)). Contrary to Oliva’s contentions, the district court adequately explained

the basis for the sentence imposed and did not procedurally err, plain or otherwise,

by not discussing its discretion to vary from the Guidelines based on policy

grounds under Kimbrough v. United States, 552 U.S. 85, 109 (2007). See Carty,

520 F.3d at 993 (reviewing sentencing decisions for an abuse of discretion); see

also United States v. Carper, 659 F.3d 923, 925 (9th Cir. 2011) (“The district court

here gave no indication that it disagreed with [the Guidelines enhancement].

Therefore, [the defendant] was not prejudiced by the court’s failure to consider sua

sponte whether it had discretion to make a downward variance under

Kimbrough.”).

      Finally, Oliva has not demonstrated that her sentence is substantively

unreasonable. See Carty, 520 F.3d at 993. The district court considered that

Oliva’s predicate felony drug trafficking conviction that triggered the 16-level


                                          3
enhancement was not remote in time; Oliva’s extensive criminal history included

several drug-trafficking and drug-related offenses; and Oliva attempted to illegally

reenter the United States less than one year following her deportation after serving

her sentence on the predicate drug-trafficking conviction. Cf. United States v.

Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009) (“[U]nder the circum-

stances of this case, it was unreasonable to adhere to the Guidelines sentence, with

its full 16-level enhancement under § 2L1.2(b), because of the staleness of [the

defendant]’s prior conviction and his subsequent history showing no convictions

for harming others or committing other crimes listed in Section 2L1.2.”). The

district court granted a downward variance and substantiated the sentence noting

that although it was higher than Oliva’s previous sentence of 18 months for illegal

reentry, the 48-month sentence nonetheless represented a significant variance from

the Guidelines range and a lower sentence would not provide adequate deterrence

and would have a tendency to promote unwarranted sentencing disparity when

considering Oliva’s prior criminal history. Thus, Oliva’s below-Guidelines

sentence is substantively reasonable.

      AFFIRMED.




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