USA V. HERMINIO GARCIA-GARCIA, No. 12-50352 (9th Cir. 2013)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 09 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 12-50352 D.C. No. 3:10-cr-01571-JLS v. MEMORANDUM* HERMINIO GARCIA-GARCIA, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding Submitted November 19, 2013** Before: CANBY, TROTT, and THOMAS, Circuit Judges. Herminio Garcia-Garcia appeals from the district court s judgment and challenges the 70-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 we affirm. * 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). Garcia-Garcia contends that the district court abused its discretion by relying on U.S.S.G. § 2L1.2(b) in imposing sentence. He argues that section 2L1.2(b) is not supported by empirical evidence, resulted in improper double counting of his prior conviction for possession of a controlled substance, arbitrarily increased his sentence based on unrelated prior conduct, and resulted in a disproportionately long sentence. These contentions lack merit. See United States v. Salazar-Mojica, 634 F.3d 1070, 1074 (9th Cir. 2011) (rejecting broad allegation that the Sentencing Commission lacked justification to authorize increases in offense levels under section 2L1.2); United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (per curiam) (finding no improper double counting in using a prior conviction for a sentencing enhancement and for calculating criminal history score). The court did not procedurally err in relying on section 2L1.2(b) or otherwise abuse its discretion in imposing Garcia-Garcia s sentence. See Gall v. United States, 552 U.S. 38, 51, 55-56 (2007). The within-Guidelines sentence is substantively reasonable in light of the totality of the circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a). See id. at 51. AFFIRMED. 2 12-50352
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