                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 21 2012

                                                                         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. 11-50531

               Plaintiff - Appellee,              D.C. No. 3:10-cr-00257-BEN

  v.
                                                  MEMORANDUM *
JOSE JESUS CORTEZ,

               Defendant - Appellant.



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

                           Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Jose Jesus Cortez appeals from the 77-month sentence imposed following

his guilty-plea conviction for attempted entry 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).
      Cortez contends that his sentence is substantively unreasonable. He argues

that the district court should have granted a downward departure because the

Guidelines range overrepresents his criminal history and because his prior felony

conviction, which triggered a 16-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A), is stale. The sentence at the bottom of the Guidelines range is

substantively reasonable in light of the totality of the circumstances and the

sentencing factors set forth in 18 U.S.C. § 3553(a). See Gall v. United States, 552

U.S. 38, 51, (2007); United States v. Tankersley, 537 F.3d 1100, 1113 (9th Cir.

2008) (“After Booker, the scheme of downward and upward departures has been

replaced by the requirement that judges impose a reasonable sentence.”).

      AFFIRMED.




                                           2                                     11-50531
