                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 22 2013

                                                                        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. 12-50225

               Plaintiff - Appellee,             D.C. No. 3:12-cr-00144-LAB

  v.
                                                 MEMORANDUM *
ANTONIO TALAVERA-RUIZ,

               Defendant - Appellant.



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

                            Submitted October 15, 2013 **

Before:        FISHER, GOULD, and BYBEE, Circuit Judges.

       Antonio Talavera-Ruiz appeals from the district court’s judgment and

challenges the 42-month sentence and three-year term of supervised release

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

          *
             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).
U.S.C. § 1291, and we affirm.

      Talavera-Ruiz first contends that the district court relied on impermissible

factors, namely the costs of prosecution and incarceration, when it imposed his

custodial sentence. Taken in context, the district court’s references to the costs of

prosecution and incarceration related to its consideration of deterring future crimes.

These references are not inconsistent with United States v. Tapia-Romero, 523

F.3d 1125, 1126 (9th Cir. 2008), which precludes district courts from weighing the

costs of incarceration in favor of shorter sentence, not from considering the costs

associated with recidivism. The record makes clear that the court properly based

the sentence on the need to deter Talavera-Ruiz from committing future crimes.

See 18 U.S.C. § 3553(a)(2)(B).

      Talavera-Ruiz next contends that the district court procedurally erred in

imposing a term of supervised release in light of U.S.S.G. § 5D1.1(c) (2011),

which directs that a district court ordinarily should not impose supervised release if

the defendant is a deportable alien. We review for plain error, see United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. Talavera-

Ruiz has not shown a reasonable probability that he would have received a

different sentence had the district court given explicit consideration to section

5D1.1(c). See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).


                                           2                                    12-50225
      Talavera-Ruiz finally contends that the three-year term of supervised release

is substantively unreasonable. The district court did not abuse its discretion in

imposing Talavera-Ruiz’s sentence. See Gall v. United States, 552 U.S. 38, 51

(2007). The sentence is substantively reasonable in light of the totality of the

circumstances, including Talavera-Ruiz’s multiple prior deportations and

violations of the immigration laws. See id.; see also U.S.S.G. § 5D1.1 cmt. n.5

(district court should consider imposing term of supervised release on deportable

alien if it determines supervised release would provide an added measure of

deterrence).

      AFFIRMED.




                                           3                                       12-50225
