                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 29 2011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. 10-10188

               Plaintiff - Appellee,             D.C. No. 2:09-cr-01090-GMS

  v.
                                                 MEMORANDUM *
JAIME GARCIA-HERRERA, a.k.a. Cobra
Barrioquatro, a.k.a. Miguel Lardoguri-
Gonzales,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Northern District of California
                     G. Murray Snow, District Judge, Presiding

                              Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Jaime Garcia-Herrera appeals from the 50-month sentence imposed

following his guilty-plea conviction for re-entry of removed alien, in violation of




          *
             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).
8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

      Garcia-Herrera contends that the district court procedurally erred (1) by

failing to consider his argument that the sentencing enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(i) lacks an empirical basis or considered rationale and is not an

accurate measure of the gravity of the underlying offense; and (2) by failing to

explain why it selected his sentence. We review for plain error, see United States

v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008), and affirm because Garcia-Herrera

has not established any error by the district court, see id. at 761-62. The record

shows that the court heard and considered all of Garcia-Herrera’s arguments and

properly explained its rationale for selecting the sentence. See United States v.

Amezcua-Vasquez, 567 F.3d 1050, 1053-54 (9th Cir. 2009).

      Garcia-Herrera also contends that the sentence is substantively unreasonable.

In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing

factors, the below-Guidelines sentence was not substantively unreasonable. See

United States v. Valencia-Barragan, 608 F.3d 1103, 1108-09 (9th Cir. 2010).

      AFFIRMED.




                                           2                                    10-10188
