                                                                            FILED
                           NOT FOR PUBLICATION                               JAN 28 2010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. 09-10123

             Plaintiff - Appellee,               D.C. No. 2:08-CR-00097-JCM-
                                                 RJJ
  v.

RODRIGO LIZARRAGA-BELTRAN,                       MEMORANDUM *

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                          Submitted September 2, 2009 **
                            San Francisco, California

Before: HUG, SKOPIL and BEEZER, Circuit Judges.

       Rodrigo Lizarraga-Beltran appeals his 84-month sentence for violation of

8 U.S.C. § 1326, unlawful reentry of a removed alien, as substantively

unreasonable. He specifically argues that the district court unreasonably applied


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
the 16-level enhancement under U.S. Sentencing Guidelines § 2L1.2(b)(1)(A)(i)

for a previous felony drug-trafficking conviction for which the sentence imposed

exceeded 13 months. Mr. Lizarraga contends this enhancement was substantively

unreasonable under the 18 U.S.C. § 3553(a) factors because “the staleness of his

predicate felony, his chronic health issues and advanced age are all unique

circumstances” that require a sentence lower than the Guidelines range. We have

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review the

substantive reasonableness of a sentence for abuse of discretion. United States v.

Carty, 520 F.3d 984, 988 (9th Cir. 2008). We affirm.

      Mr. Lizarraga primarily relies on United States v. Amezcua-Vasquez, 567

F.3d 1050 (9th Cir. 2009), to argue that the predicate drug-trafficking offense was

“stale.” In Amezcua-Vasquez, we concluded that although “[i]t is not per se

unreasonable to apply the enhancement when the conviction is too stale to be

counted for purposes of the criminal history,” it was unreasonable to apply the

enhancement under the circumstances of that case. Id. at 1054. The facts of this

case are entirely different.

      As opposed to the defendant in Amezcua-Vasquez, Mr. Lizarraga’s 2004

predicate conviction was not too stale to be counted for purposes of criminal

history. See id. Indeed, his conviction was only five years old rather than 25 years

old as in Amezcua-Vasquez. See id. at 1052. Mr. Lizarraga committed the
predicate offense 11 years prior to his § 1326 conviction, rather than 25 years

previously as in Amezcua-Vasquez. See id. Mr. Amezcua had a criminal-history

category of II. Id. Mr. Lizarraga’s was VI—the highest category. Mr. Amezcua

had no § 2L1.2 crimes in the past twenty years. Id. at 1056. Mr. Lizarraga had

three convictions after the predicate offense that would have qualified for § 2L1.2

enhancements: felony possession of narcotics, felony driving or taking of a vehicle,

and the aggravated felony of receiving stolen property.

      In discussing the § 3553 factors, the district court stated that Mr. Lizarraga’s

“long sentence” was “warranted by the defendant’s criminal history.” The district

court did not abuse its discretion in making this determination. See United States

v. Becerril-Lopez, 541 F.3d 881, 894 (9th Cir. 2008) (concluding that the district

court did not abuse its discretion because “it considered the § 3553(a) factors, and

indicated that it considered the most salient feature of Becerril’s individual

circumstances to be his extensive criminal history”).

      Likewise, the district court did not abuse its discretion in concluding that

Mr. Lizarraga’s extensive criminal history outweighed the countervailing

considerations of his poor health and opportunity to work on the family ranch.

“Circumstances may well make clear that the [sentencing] judge rests his decision

upon the Commission’s own reasoning that the Guidelines sentence is a proper

sentence (in terms of § 3553(a) and other congressional mandates) in the typical
case, and that the judge has found that the case before him is typical.’” Carty, 520

F.3d at 995 (quoting Rita v. United States, 551 U.S. 338, 357 (2007)).

      AFFIRMED.
