                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 21 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-50622

              Plaintiff - Appellee,              D.C. No. 3:09-cr-03510-LAB-1

  v.
                                                 MEMORANDUM*
RICARDO CORDERO-ONTIVEROS,

              Defendant - Appellant.


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

                          Submitted December 9, 2010**
                              Pasadena, California

Before: PREGERSON and CLIFTON, Circuit Judges, and HOLLAND, Senior
District Judge.***




        *
             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).
        ***
              The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
       Defendant - Appellant Ricardo Cordero-Ontiveros (“Cordero”), a citizen of

Mexico, appeals his 24-month sentence for being a deported alien found in the

United States under 8 U.S.C. § 1326. For the reasons outlined below, we affirm

the district court.

       Under de novo review, United States v. Thomas, 355 F.3d 1191, 1194 (9th

Cir. 2004), the district court did not violate Federal Rule of Criminal Procedure 32.

The district court resolved any factual dispute about alien smuggling when it

definitively ruled that “there is no proof of alien smuggling.” After this ruling, the

court did not again refer to alien smuggling. The court also explicitly stated that it

accepted “at face value” Cordero’s explanation that he crossed the border for the

sole purpose of finding work to support his family. The court said, “I take your

word for it that [Cordero’s] reasons are to find a job and find opportunity.”

       Cordero claims that the district court abused its discretion by basing its

sentencing decision on unreliable allegations of alien smuggling. Because the

district court explicitly found no evidence of alien smuggling, and therefore did not

base its sentence on such evidence, Cordero’s claim fails. Cf. United States v.

Hanna, 49 F.3d 572, 577 (9th Cir. 1995) (holding that the district court abuses its

discretion if it bases its sentence on materially false or unreliable information).

       Finally, the imposition of a 24-month sentence was not unreasonable. The

court considered the relevant sentencing factors under 18 U.S.C. § 3553(a), and
was within its discretion to give the greatest weight to the factor of deterrence,

especially because this was the fourth time Cordero had been convicted under 8

U.S.C. § 1326. See United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th

Cir. 2009). It was logical and reasonable for the district court to use Cordero’s past

sentences as a starting point for setting his new sentence, given that those prior

sentences had been insufficient to deter Cordero from violating § 1326 again.

Contrary to Cordero’s assertion, the district court did not fail to meaningfully

consider the correct range under the U.S. Sentencing Guidelines. The court began

the sentencing hearing with a discussion of the guideline range, repeatedly referred

back to that range throughout the hearing when weighing the § 3553(a) factors, and

provided detailed reasoning for varying upwards from the guidelines. Thus, the

district court properly used the Sentencing Guidelines as “the starting point and the

initial benchmark[,]” Gall v. United States, 552 U.S. 38, 49 (2008), and kept the

Guidelines in mind throughout the process. United States v. Carty, 520 F.3d 984,

991 (9th Cir. 2008).

      AFFIRMED.
