                                                                             FILED
                             NOT FOR PUBLICATION                              MAR 01 2010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,                        Nos. 09-50007 & 09-50034

               Plaintiff - Appellee,              D.C. Nos. 3:08-cr-01831-LAB
                                                            3:03-cr-02667-NAJ
   v.

 RAYMOND MILITANTE REBAYA,                        MEMORANDUM *

               Defendant - Appellant.



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

                            Submitted February 16, 2010 **

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

        In these consolidated appeals, Raymond Militante Rebaya appeals in No. 09-

50007 from the 48-month sentence imposed following his guilty-plea conviction

for transportation of illegal aliens and aiding and abetting, in violation of 8 U.S.C.

          *
             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).

JC/Research
§ 1324(a)(1)(A)(ii), and (v)(II), and in No. 09-50034 from the 18-month

consecutive sentence imposed following revocation of supervised release. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

        In No. 09-50007, Rebaya contends the district court procedurally erred by

(1) imposing a sentence without properly explaining and considering all of the

18 U.S.C. § 3553(a) sentencing factors, and (2) failing to justify and explain why

an above-guidelines sentence was necessary. The record belies this contention.

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

see also id. at 993 (appellate courts are to give due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the extent of the variance).

        In No. 09-50034, Rebaya contends the district court procedurally erred by

failing to provide an explanation for the 18-month sentence imposed following the

revocation of his supervised release. This contention fails because an adequate

explanation may be inferred from the “record as a whole.” See id. at 992.

        AFFIRMED.




JC/Research                                 2                           09-50007 & 09-50034
