United States of America v. Gerardo Valdivia

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NOT FOR PUBLICATION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.
GERARDO VALDIVIA,
Defendant - Appellant.
No. 11-10277
D.C. No. 2:10-cr-00442-RLH
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Submitted May 15, 2012**
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Gerardo Valdivia appeals from the 57-month sentence imposed following
his guilty-plea conviction for being a deported alien found unlawfully in the United
States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
FILED
MAY 18 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-10277 2
§ 1291, and we affirm.
Valdivia first contends that the district court procedurally erred by failing
adequately to explain the sentence imposed. The record belies this contention.
Valdivia next contends that the district court erred by misunderstanding its
authority to depart downward based on cultural assimilation. The district court
appears to have based its denial of a downward departure, at least in part, on a
mistaken belief that a previously deported alien cannot rely on cultural assimilation
as a ground for a departure. See U.S.S.G. § 2L1.2 cmt. n.8. However, any error is
harmless because it did not affect the district court’s selection of the sentence
imposed. See United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).
AFFIRMED.

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