                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 01 2010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. 10-50329

               Plaintiff - Appellee,             D.C. No. 3:10-cr-00913-L

  v.
                                                 MEMORANDUM *
LUIS MANUEL BARRAGAN-
CAMARENA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    M. James Lorenz, District Judge, Presiding

                            Submitted October 19, 2010 **

Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       Luis Manuel Barragan-Camarena appeals from his 10-month sentenced

imposed following his guilty-plea conviction for attempted entry after deportation,




          *
             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).
in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      Barragan-Camarena contends that the district court procedurally erred by

failing to calculate the Sentencing Guidelines range, failing adequately to explain

the sentence, incorrectly adopting certain Sentencing Guidelines departures, and

relying on erroneous factual findings. These contentions are belied by the record.

The district court did not procedurally err. Gall v. United States, 552 U.S. 38, 49-

51 (2007).

      Barragan-Camarena also contends that the district court abused its discretion

when it increased his sentence based on conduct related to a dismissed charge. The

district court did not abuse its discretion when it relied on Barragan-Camarena’s

fraudulent use of an entry document to increase his sentence. See 18 U.S.C.

§ 3553(a)(1) (instructing courts to consider the nature and circumstances of the

offense and the history and characteristics of the defendant); United States v.

Barragan-Espinoza, 350 F.3d 978, 983 (9th Cir. 2003) (recognizing that United

States v. Lawton, 193 F.3d 1087 (9th Cir. 1999) has been superceded, and holding

that sentencing courts may consider aggravating conduct that is dismissed).

      Finally, Barragan-Camarena contends that the ten-month sentence was

substantively unreasonable because it was higher than necessary in light of the


                                          2                                       10-50329
circumstances, including his allegedly minimal criminal history and the need for

deterrence and protection of the public. Given the factors set forth in 18 U.S.C.

§ 3553(a) and the totality of the circumstances, the sentence is not substantively

unreasonable. See Gall, 552 U.S. at 41, 56-58.

      AFFIRMED.




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