United States of America v. Heriberto Valencia

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERIBERTO VALENCIA,
Defendant - Appellant.
No. 09-10266
D.C. No. 2:08-cr-01408-FJM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted August 23, 2010**
Before: LEAVY, HAWKINS, and THOMAS, Circuit Judges.
Heriberto Valencia appeals from the 37-month sentence imposed following
his guilty-plea conviction for reentry after deportation, in violation of 8 U.S.C.
§ 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Valencia contends that his above-guidelines sentence is substantively
FILED
SEP 07 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-10266 2
unreasonable given his background and criminal record. The record reflects the
district court did not procedurally err, and the sentence imposed is substantively
reasonable under the totality of the circumstances. See Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)
(en banc).
Further, contrary to Valencia’s contention, the prospective amendment to the
sentencing guidelines does not assist his case. See U.S.S.G. § 2L1.2.
AFFIRMED.

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