                                                                             FILED
                             NOT FOR PUBLICATION                              DEC 17 2009

                                                                         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. 09-50089

               Plaintiff - Appellee,              D.C. No. 3:08-CR-02589-LAB

   v.
                                                  MEMORANDUM *
 SERGIO PEREZ-OCHOA, AKA Daniel
 Perez-Soto,

               Defendant - Appellant.



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

                           Submitted November 17, 2009 **


Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Sergio Perez-Ochoa appeals from the 48-month sentence imposed following

his guilty-plea conviction for transporting illegal aliens and aiding and abetting, in



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

SZ/Research
violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II). We have jurisdiction

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

       Perez-Ochoa contends that the district court erroneously imposed concurrent

enhancements under U.S.S.G. §§ 2L1.1(b)(6) and 3C1.2 based on the same

conduct. This contention is belied by the record. See United States v. Dixon, 201

F.3d 1223, 1234 (9th Cir. 2000).

       Perez-Ochoa also contends that the district court procedurally erred by

relying on clearly erroneous facts, failing to consider his mitigation arguments, and

focusing unduly on the goals of protection of the public and deterrence. He also

contends that his sentence is substantively unreasonable. The record reflects that

the district court did not procedurally err and the sentence imposed is substantively

reasonable in light of the totality of the circumstances. See United States v. Carty,

520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).

       Finally, Perez-Ochoa contends that the district court violated his due process

rights when it sentenced him based on unfounded speculation regarding his prior

criminal history. This contention is belied by the record. See United States v.

Romero-Rendon, 220 F.3d 1159, 1165 (9th Cir. 2000) (holding that an unchalleged

presentence report is sufficient evidence to increase a defendant’s sentence); see

also United States v. Robelo, 596 F.2d 868, 870 (9th Cir. 1979) (holding that the


SZ/Research                               2                                      09-50089
district court did not violate due process by basing its sentencing decision on

reasonable inferences from the facts before it).

       Perez-Ochoa’s second motion for an extension of time to file the reply brief

is granted.

       AFFIRMED.




SZ/Research                               3                                       09-50089
