                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 29 2011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. 10-10241

               Plaintiff - Appellee,              D.C. No. 4:09-cr-02865-FRZ

  v.
                                                  MEMORANDUM *
RAUL LAZCANO-SALAZAR,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Frank R. Zapata, District Judge, Presiding

                              Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Raul Lazcano-Salazar appeals from the 40-month sentence imposed

following his guilty-plea conviction for reentry after deportation, in violation of

8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Lazcano-Salazar contends that the district court abused its discretion by

          *
             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).
considering both a 1987 felony machine gun possession conviction and a 1997

heroin conspiracy conviction in reaching the decision to vary only six months

downward from the applicable Guidelines range. This contention is without merit.

Section 3553(a) explicitly calls upon the sentencing judge to consider the

defendant’s “history and characteristics” in fashioning a sentence. The district

court’s determination that the age of Lazcano-Salazar’s prior felonies, when

measured against their seriousness, warranted a variance of six months was

consistent with this court’s decision in United States v. Amezcua-Vasquez, 567

F.3d 1050, 1055-56 (9th Cir. 2009).

         Lazcano-Salazar also contends that the United States left him with a

“skewed impression of the seriousness” of an illegal reentry charge when it

detained him for only three weeks in 2002 after a reentry that followed his release

from prison on the heroin conviction, rendering a 40-month sentence in connection

with his present reentry unreasonable. The below-Guidelines sentence imposed

was substantively reasonable under 18 U.S.C. § 3553(a) and the totality of the

circumstances. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en

banc).

         AFFIRMED.




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