                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 23 2011

                                                                        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. 10-50307

               Plaintiff - Appellee,             D.C. No. 3:10-cr-02090-BEN

  v.
                                                 MEMORANDUM *
TEODORO MARTINEZ-CARMONA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                            Submitted February 15, 2011 **

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

       Teodoro Martinez-Carmona appeals from the 36-month sentence imposed

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

deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

          *
             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).
      Relying on United States v. Reese, 2 F.3d 870 (9th Circ. 1993), Martinez-

Carmona contends that the district court impermissibly engaged in double and

triple counting when it relied on prior convictions to calculate the criminal history

category, enhance the offense level, and impose an upward variance. However,

prior convictions can be used as a basis for sentencing enhancements under

U.S.S.G. § 2L1.2 and in calculating a defendant’s criminal history score. See

United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (per

curiam). Because the variance was not based on the Guidelines, it could not

constitute impermissible double counting. See Reese, 2 F.3d at 895.

      He next contends that the district court’s reliance on judge-found facts to

impose an above-Guideline sentence violated Apprendi v. New Jersey, 530 U.S.

466 (2000). This contention fails as the sentence was imposed under the advisory

Guidelines and did not exceed the statutory maximum sentence, as established by

the statute of conviction. See United States v. Booker, 543 U.S. 220 (2005); see

also United States v. Ameline, 409 F.3d 1073, 1077-78 (9th Cir. 2005)(en banc).

      To the extent Martinez-Carmona argues that his sentence is substantively

unreasonable, the record reflects that the sentence imposed is substantively

reasonable in light of the totality of the circumstances and the factors set forth in

18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 51-52 (2007); see


                                           2                                     10-50307
also United States v. Orlando, 553 F.3d 1235, 1239 (9th Cir. 2009) (sentence with

upward variance was substantively reasonable where the district court reasonably

found the Guideline sentence insufficient to provide the necessary deterrence, to

address the need for the defendant to learn respect for the law, and to reflect the

nature of the defendant’s criminal history).

      AFFIRMED.




                                           3                                    10-50307
