                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 21 2012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. 11-50337

               Plaintiff - Appellee,             D.C. No. 3:11-cr-01378-W

  v.
                                                 MEMORANDUM *
PEDRO SANTOS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    Thomas J. Whelan, District Judge, Presiding

                           Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Pedro Santos appeals from the 51-month sentence imposed following his

guilty-plea conviction for being a deported alien found in the United States, in

violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and




          *
             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).
we affirm.

      The government contends that Santos’s appeal should be dismissed based on

the appeal waiver in his plea agreement. Because the district court did not discuss

the appeal waiver during the change of plea hearing, we decline to enforce it. See

United States v. Arellano-Gallegos, 387 F.3d 794, 796-97 (9th Cir. 2004).

      Santos contends that the district court procedurally erred by failing to

explain adequately the sentence imposed, in that it did not specifically explain why

it was adopting a 16-level enhancement for Santos’s prior drug trafficking offense.

Our precedent does not require the district court to explain why it is adopting the

calculations set forth in the Guidelines. Although the district court imposed a 16-

level enhancement, it granted a four-level fast track departure, rather than the two-

level departure recommended by the government and contemplated by the plea

agreement. The district court explained why it was imposing the additional

departure, and why it did not find persuasive Santos’s arguments for a downward

variance from the reduced Guidelines range. Its explanation of the sentence was

plainly sufficient. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008)

(en banc).

      Santos also contends that his sentence is substantively unreasonable because

the 16-level enhancement for his prior aggravated felony made the sentence longer


                                          2                                      11-50337
than necessary for someone with his background. The 51-month sentence is

substantively reasonable in light of the totality of the circumstances and the 18

U.S.C. § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 51

(2007).

      AFFIRMED.




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