                                                                             FILED
                            NOT FOR PUBLICATION                               JUL 01 2011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. 10-50525

               Plaintiff - Appellee,              D.C. No. 3:10-cr-01460-DMS

  v.
                                                  MEMORANDUM *
GILBERT OLIVA DIAZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                              Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Gilbert Oliva Diaz appeals from the 77-month sentence imposed following

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

8 U.S.C. § 1326, and fraud and misuse of an entry document, in violation of

18 U.S.C. § 1546(a). 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).
      Diaz first contends that in light of subsequent Supreme Court decisions,

Almendarez-Torres v. United States, 523 U.S. 224 (1998), has been overruled and

that 8 U.S.C. § 1326(b) is unconstitutional. As Diaz concedes, these contentions

are foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.

2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir. 2005).

      Diaz also contends that the sentence is substantively unreasonable in light of

his mitigating personal circumstances and the age and nature of the prior

conviction that was the basis for a 16-level enhancement. The sentence imposed is

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); United

States v. Orozco-Acosta, 607 F.3d 1156, 1167 (9th Cir. 2010).

      AFFIRMED.




                                          2                                    10-50525
