                                                                             FILED
                             NOT FOR PUBLICATION                              MAR 02 2010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. 09-50011

               Plaintiff - Appellee,              D.C. No. 2:08-cr-00618-PA

   v.

 ARMANDO TORRES-NAVARETTE,                        MEMORANDUM *

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Central District of California
                      Percy Anderson, District Judge, Presiding

                            Submitted February 16, 2010 **

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

        Armando Torres-Navarette appeals from the 30-month sentence imposed

after his guilty-plea conviction for being an illegal alien found in the United States

following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction

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

        Torres-Navarette contends the district court procedurally erred by, among

other things, departing upward pursuant to U.S.S.G. § 4A1.3 for under-represented

criminal history. The district court did not err in imposing Torres-Navarette’s

sentence. See United States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006); see

also United States v. Higuera-Llamos, 574 F.3d 1206, 1212 (9th Cir. 2009).

        Torres-Navarette also contends his sentence is substantively unreasonable.

In light of the totality of the circumstances of this case and the 18 U.S.C. § 3553(a)

sentencing factors, the sentence is substantively reasonable. See Gall v. United

States, 552 U.S. 38, 51 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2008) (en banc) (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).

        AFFIRMED.




JC/Research                                2                                    09-50011
