                                                                           FILED
                             NOT FOR PUBLICATION                            APR 14 2010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. 09-50350

               Plaintiff - Appellee,              D.C. No. 3:08-CR-03747-JAH

   v.
                                                  MEMORANDUM *
 JOSE GUADALUPE ESTRADA-
 DELGADO,

               Defendant - Appellant.



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

                               Submitted April 5, 2010 **


Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

        Jose Guadalupe Estrada-Delgado appeals from the 15-month sentence

imposed following his guilty-plea conviction for making and possessing false entry

          *
             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).

NC/Research
documents, in violation of 18 U.S.C. § 1546(a). We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

       Estrada-Delgado contends that the district court sentenced him based on

clearly erroneous factual findings that: (1) the offense involved “solicitation;” and

(2) his criminal history included an offense involving the sale of drugs. He further

contends that the district court’s reliance upon the latter violates his Sixth

Amendment and Due Process rights. The record reflects that the district court did

not rely upon clearly erroneous facts. Accordingly, these contentions fail.

       Estrada-Delgado also contends that the district court’s consideration of his

criminal history at sentencing violates the Sixth Amendment’s Double Jeopardy

Clause. This contention fails because, even though Estrada-Delgado’s sentence is

affected by his criminal history, he is only being punished for one crime. See

United States v. Wright, 891 F.2d 209, 212 (9th Cir. 1989).

       Finally, Estrada-Delgado contends that the district court erroneously

believed that extraordinary circumstances were required in order for it to vary

below the Guidelines range, and that the sentence is substantively unreasonable.

The record reflects that the district court properly considered the Guidelines range

as a baseline, and then “tailor[ed] a sentence to the individualized offense and

offender characteristics of [Estrada-Delgado’s] case in consideration of the


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§ 3553(a) factors.” See United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008)

(en banc). Moreover, in light of all of the circumstances in the case, the sentence

imposed is substantively reasonable. See id. at 995-96.

       AFFIRMED.




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