                                                                          FILED
                     UNITED STATES COURT OF APPEALS                        JUN 04 2012

                                                                      MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                      U.S . CO U RT OF AP PE A LS




UNITED STATES OF AMERICA,                       No. 11-50160

              Plaintiff - Appellee,             D.C. No. 3:10-cr-01915-JAH
                                                Southern District of California,
  v.                                            San Diego

GUALBERTO BAHENA-CARRENO,
                                                ORDER
              Defendant - Appellant.



Before:      LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.

       We replace the memorandum disposition, filed January 27, 2012, with a new

memorandum disposition filed contemporaneously herewith. As amended,

Gualberto Bahena-Carreno's petition for panel rehearing is denied. No further

petitions for rehearing shall be entertained.
                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 04 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50160

               Plaintiff - Appellee,             D.C. No. 3:10-cr-01915-JAH

  v.
                                                 MEMORANDUM *
GUALBERTO BAHENA-CARRENO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                            Submitted January 17, 2012**

Before:        LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.

       Gualberto Bahena-Carreno appeals from the 36-month sentence imposed

following his guilty-plea conviction for attempted entry after deportation, in

violation of 8 U.S.C. y 1326. We have jurisdiction under 28 U.S.C. y 1291, and


          *
             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).
we affirm.

      Bahena-Carreno contends that the district court erred in denying a

downward departure for cultural assimilation because the court misapplied the

parameters for granting a departure and relied on clearly erroneous facts. The

record reflects that Bahena-Carreno did not request a downward departure for

cultural assimilation.

      The record is clear that the court entertained Bahena-Carreno's arguments as

part of its consideration of the 18 U.S.C. y 3353(a) sentencing factors, granted a

downward variance based on the staleness of Bahena-Carreno's prior conviction,

and explained why a further variance was not warranted. See United States v.

Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).

      Bahena-Carreno also contends that his sentence is substantively

unreasonable. In light of the totality of the circumstances and the section 3553(a)

sentencing factors, the sentence is substantively reasonable. See Gall v. United

States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




                                          2                                    11-50160
