United States of America v. Hector Heras-Rubio

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NOT FOR PUBLICATION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.
HECTOR HERAS-RUBIO,
Defendant - Appellant.
No. 09-10486
D.C. No. 2:09-cr-01113-NVW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted December 14, 2010**
Before: GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.
Hector Heras-Rubio appeals from the 43-month sentence imposed following
his guilty-plea conviction for re-entry after deportation, in violation of 8 U.S.C.
§ 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
DEC 27 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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09-10486 2
Heras-Rubio contends that the sentence is substantively unreasonable
because it was the result of a Guidelines range enhancement that is not based on
empirical evidence, does not account for the staleness or nature of his underlying
offense, and improperly double counted his criminal history. The record reflects
that the district court carefully considered the sentencing factors under 18 U.S.C.
§ 3553(a) and that, in light of the totality of the circumstances, the sentence was
substantively reasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (en banc); United States v. Valencia-Barragan. 608 F.3d 1103, 1108-09 (9th
Cir. 2010) (sentence not substantively unreasonable under United States v.
Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009)); see also United States v.
Luna-Herrera, 149 F.3d 1054, 1055 (9th Cir. 1998) (prior conviction may properly
be counted for both offense level and criminal history category).
AFFIRMED.

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