United States of America v. Nicasio Cruz-Garcia, a.k.a. Silvo Cruz Garcia

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NOT FOR PUBLICATION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.
NICASIO CRUZ-GARCIA, a.k.a. Silvo
Cruz Garcia,
Defendant - Appellant.
No. 09-50516
D.C. No. 3:09-cr-02601-DMS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted July 19, 2010**
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Nicasio Cruz-Garcia 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
FILED
AUG 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-50516 2
we affirm.
Cruz-Garcia’s contention that his conviction under California Health and
Safety Code section 11359 does not constitute a drug trafficking offense for
purposes of the Sentencing Guidelines is foreclosed. See United States v.
Martinez-Rodriguez, 472 F.3d 1087, 1097 (9th Cir. 2007). The district court
properly considered Cruz-Garcia’s other prior convictions under 18 U.S.C.
§ 3553(a). We need not decide whether the district court erred by considering
Cruz-Garcia’s arrests because Cruz-Garcia fails to establish that any error affected
his substantial rights. See United States v. Waknine, 543 F.3d 546, 553 (9th Cir.
2008) (describing plain error standard). Under the totality of the circumstances,
the bottom-of-the-Guidelines sentence imposed by the district court was
substantively reasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (en banc). Given Cruz-Garcia’s criminal history, we reject his contention
that his sentence is substantively unreasonable under our decision in United States
v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009). See id. at 1055-56
(Guidelines-range sentence determined largely by a 16-level enhancement for a
prior conviction was unreasonable where the prior conviction was twenty-five
years old and defendant had no subsequent convictions for harming others).
AFFIRMED.

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