                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 05 2011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. 10-50040

               Plaintiff - Appellee,             D.C. No. 3:09-cr-04631-LAB

  v.                                             MEMORANDUM *

JUAN CRUZ-RODRIGUEZ,

               Defendant - Appellant.



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

                           Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and CLIFTON, Circuit Judges.

       Juan Cruz-Rodriguez appeals from the 30-month sentence imposed

following his guilty-plea conviction for being a deported alien found in the United

States, 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).
         Cruz-Rodriguez contends the district court violated his due process rights by

failing to give him notice and an opportunity to respond as required by Federal

Rule of Criminal Procedure 32(h) (“Rule 32(h)”) before imposing an upward

departure. The record indicates the district court imposed a variance rather than a

departure, and therefore Rule 32(h) does not apply. See Irizarry v. United States,

553 U.S. 708, 714 (2008) (concluding that Rule 32(h) applies only to departures).

         Cruz-Rodriguez argues that the district court violated his due process rights

by relying on unproven facts when imposing his sentence. This claim fails because

Cruz-Rodriguez has not met his burden in demonstrating that the challenged

information was either false or unreliable or that it demonstrably made the basis for

his sentence. See United States v. Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir.

2009).

         Cruz-Rodriguez further contends that the district court misapplied the

Guidelines’ provisions regarding departures and as a result, imposed a

substantively unreasonable sentence. This claim is not persuasive because the

record reveals that the district court did not impose a departure. Moreover,

considering the totality of the circumstances, including the 18 U.S.C. § 3553(a)

sentencing factors, the district court did not abuse its discretion by imposing a




                                            2                                     10-50040
sentence six months above the applicable Sentencing Guidelines range. See United

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

      AFFIRMED.




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