                                                                             FILED
                            NOT FOR PUBLICATION                               APR 28 2011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. 10-50374

               Plaintiff - Appellee,              D.C. No. 3:09-cr-03956-BTM

  v.
                                                  MEMORANDUM *
LUCAS ORTEGA-LOPEZ,

               Defendant - Appellant.



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

                             Submitted April 20, 2011 **

Before:        RYMER, THOMAS, and PAEZ, Circuit Judges.

       Lucas Ortega-Lopez appeals from the 63-month sentence imposed following

his guilty-plea conviction for attempted re-entry after deportation, in violation of

8 U.S.C. § 1326, and fraud and misuse of an entry document, in violation of

18 U.S.C. § 1546(a). 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).
      Ortega-Lopez first contends that the district court procedurally erred by: (1)

refusing to consider imposing a lower sentence in order to achieve parity with

fast-track defendants; and (2) failing to adequately explain its reasons for the

sentence. The record reflects that the district court considered all of the factors set

forth in 18 U.S.C. § 3553(a), adequately explained the sentence, and did not

otherwise procedurally err. See United States v. Carty, 520 F.3d 984, 991-93 (9th

Cir. 2008) (en banc).

      Ortega-Lopez also contends that his sentence is substantively unreasonable.

The record reflects that the 63-month sentence is substantively reasonable in light

of the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-52

(2007); see also United States v. Gonzalez-Zotelo, 556 F.3d 736, 739 (9th Cir.

2009) (“[A] district court may not take fast-track disparities into account in

sentencing under 18 U.S.C. § 3553(a)(6) because § 3553(a)(6) directs the district

judge to consider only ‘unwarranted’ sentencing disparities.”).

      To the extent Ortega-Lopez challenges the constitutionality of his sentence

on the ground that the statutory maximum sentence for a section 1326 violation is

two years imprisonment or that his sentence was wrongly enhanced because his

prior conviction was not charged in the indictment, submitted to a jury, or proved

beyond a reasonable doubt, these arguments are without merit. See United States


                                           2                                       10-50374
v. Contreras-Hernandez, 628 F.3d 1169, 1174-75 (9th Cir. 2011); see also United

States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir. 2006).

      AFFIRMED.




                                        3                                 10-50374
