FILED

NOT FOR PUBLICATION FEB 23 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-10505

Plaintiff - Appellee, D.C. No. 4:09-cr-01358-DCB

v.

FELIX SANTIAGO LEMUS- MEMORANDUM *

RODRIGUEZ,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding

Submitted February 15, 2011 **

Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

Felix Santiago Lemus-Rodriguez appeals from the 41-month sentence

imposed following his guilty-plea conviction for re-entry after deportation, in

violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and

* 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). we affirm.

Lemus-Rodriguez contends that the district court committed procedural error

by: (1) relying on a clearly erroneous fact; (2) failing to explain adequately its

reasons for rejecting his arguments; and (3) failing to explain adequately the

reasons for and the extent of variance from the guidelines range.

Lemus-Rodriguez has not demonstrated that the alleged factual error by the

district court affected his substantial rights. See United States v. Dallman, 533

F.3d 755, 761-62 (9th Cir. 2008). Lemus-Rodriguez’s other contentions of

procedural error are belied by the record. It is clear the district court considered

Lemus-Rodriguez’s sentencing arguments. See United States v. Perez-Perez, 512

F.3d 514, 516 (9th Cir. 2008).

Finally, in light of the totality of the circumstances and the 18 U.S.C.

§ 3553(a) factors, the sentence is not substantively unreasonable. See Gall v.

United States, 552 U.S. 38, 51 (2007).

AFFIRMED.

2 09-10505