                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 19 2013

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10606

               Plaintiff - Appellee,             D.C. No. 4:12-cr-00400-CKJ

  v.
                                                 MEMORANDUM*
JAIME ALARCON-HERNANDEZ, a.k.a.
Jaime Alarcon,

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                           Submitted December 17, 2013**

Before:        GOODWIN, WALLACE, and GRABER, Circuit Judges.

       Jaime Alarcon-Hernandez appeals from the district court’s judgment and

challenges the 46-month sentence imposed following his guilty-plea conviction for

reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction


          *
             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).
under 28 U.S.C. § 1291, and we affirm.

      Alarcon-Hernandez contends that the district court erred by determining that

his prior conviction for attempted second-degree sexual assault constitutes an

aggravated-felony conviction under 8 U.S.C. § 1101(a)(43)(A) that bars him from

eligibility for a departure under U.S.S.G. § 2L1.2 cmt. n.7. Even if the district

court erred in its aggravated-felony determination, it understood that it had the

discretion to sentence Alarcon-Hernandez outside of the advisory Guidelines range

but declined to do so in light of the 18 U.S.C. § 3553(a) sentencing factors.

Alarcon-Hernandez does not contend that the district court imposed a substantively

unreasonable sentence, nor would such a contention be availing on this record.

Thus, we identify no basis for reversing. See United States v. Vasquez-Cruz,

692 F.3d 1001, 1005 (9th Cir. 2012) (“[A]ny erroneous application of [a] departure

would be harmless so long as the sentence actually imposed was substantively

reasonable.”).

      AFFIRMED.




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