                                                                             FILED
                                   NOT FOR PUBLICATION                        JUL 07 2010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. 09-50359

             Plaintiff-Appellee,                         D.C. No. 3:08-cr-04232-WQH

                                                         MEMORANDUM *
   v.

 RAYMOND SALAZAR-AGUNDES

             Defendant-Appellant.



                      Appeal from the United States District Court
                        for the Southern District of California
                      William Q. Hayes, District Judge, Presiding

                               Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

        Raymond Salzar-Agundes appeals from the 40-month sentenced imposed

following his guilty-plea conviction for illegal re-entry of a deported alien, in




        *
         This disposition is not appropriate for publication and may not be cited to or
by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
        **
         The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

      Salazar-Agundes contends that his sentence is unreasonable because the

district court committed a procedural error in failing adequately to explain his 40-

month sentence, which is below the Sentencing Guidelines range of 46-57 months.

This contention is belied by the record, which contains an adequate explanation.

United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc).

      Salazar-Agundes also contends that his sentence is substantively

unreasonable in light of this Court’s decision in United States v. Amezcua-Vasquez,

567 F.3d 1050, 1054-56 (9th Cir. 2009). Salazar-Agundes contends that under this

Court’s reasoning in Amezcua-Vasquez, his qualifying crime of violence

conviction was too stale. Therefore, the district court should not have applied the

16-level sentencing enhancement under U.S.S.G. § 2L1.2(B)(1)(A)(ii). The

record, however, reflects that the district court considered Salzar-Agundes’

argument in this regard and found that the facts in the instant case justified a

sentence below the Guidelines range. The district court nevertheless found the

facts insufficient to justify Salazar-Agundes’ request for a much lower sentence.

Accordingly, under the totality of the circumstances, Salzar-Agundes’ sentence is

substantively reasonable. Gall v. United States, 552 U.S. 38, 53-60 (2007).

      AFFIRMED.

                                           2
