                                                                             FILED
                            NOT FOR PUBLICATION                               JUL 19 2012

                                                                         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. 11-50449

               Plaintiff - Appellee,              D.C. No. 3:11-cr-02747-LAB

  v.
                                                  MEMORANDUM *
NOE MACIAS-ARIAS,

               Defendant - Appellant.



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

                              Submitted July 17, 2012 **

Before:        SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Noe Macias-Arias appeals from the 42-month sentence imposed following

his guilty-plea conviction for attempted entry after deportation, in violation of 8

U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Macias-Arias contends that the district court procedurally erred by: (1)

          *
             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).
giving excessive weight to deterrence to the exclusion of other 18 U.S.C. § 3553(a)

sentencing factors; (2) using an incorrect legal standard to determine the extent of

the variance; and (3) failing to explain adequately the basis for the upward variance

and why a 42-month sentence is necessary. The record belies these contentions.

The district court considered and discussed the advisory Guidelines range and the

section 3553(a) sentencing factors, and explained at length the reasons for the

variance and the sentence.

      Macias-Arias also contends that his sentence is substantively unreasonable

because it is greater than necessary to achieve the section 3553(a) sentencing

objectives. The record reflects that, under 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                                      11-50449
