United States of America v. Victor Manuel Leyva-Cabrera

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NOT FOR PUBLICATION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.
VICTOR MANUEL LEYVA-CABRERA,
Defendant - Appellant.
No. 10-10098
D.C. No. 2:09-cr-01162-DGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted September 27, 2011**
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
Victor Manuel Leyva-Cabrera appeals from the 46-month sentence imposed
following his guilty-plea conviction for re-entry of a removed alien, in violation of
8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Leyva-Cabrera contends that the district court erred by failing to consider his
FILED
OCT 05 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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request for a downward departure based on cultural assimilation. The record
reflects that the district court considered the request but concluded that Leyva-
Cabrera’s cultural ties to the United States did not justify a downward departure
from the Guidelines range. See United States v. Carty, 520 F.3d 984, 992-93 (9th
Cir. 2008) (en banc).
Leyva-Cabrera also contends that the sentence imposed was greater than
necessary to accomplish the statutory purposes of sentencing. The record reflects
that the court carefully considered the 18 U.S.C. § 3553(a) sentencing factors,
particularly the need to afford adequate deterrence and to protect the public, before
concluding that the circumstances were insufficient to warrant a sentence below
the advisory Guidelines range. Leyva-Cabrera’s sentence at the bottom of the
Guidelines range is substantively reasonable under the totality of the circumstances
and in light of the sentencing factors set forth in 18 U.S.C. § 3553(a). See Gall v.
United States, 552 U.S. 38, 51 (2007).
AFFIRMED.

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