FILED

NOT FOR PUBLICATION OCT 5 2011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. 09-50514

Plaintiff - Appellee, D.C. No. 2:09-cr-00178-PA

v.

MEMORANDUM *

PEDRO MORA,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted September 27, 2011 **

Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

Pedro Mora appeals from the 92-month sentence imposed following

his jury-trial conviction for being an illegal alien found in the United States

following deportation, 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). Mora contends that the district court plainly erred because it failed to

consider a proposed guideline amendment deleting the provision for “recency

points” in calculating criminal history under U.S.S.G. § 4A1.1(e) at the time of

sentencing. This contention is without merit. The district court accurately

calculated the guideline range applicable at the time of sentencing. See United

States v. Ruiz-Apolonio, No. 10-50306, 2011 WL 4060803 at 8-9 (9th Cir. Sept.

14, 2011); see also United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en

banc).

Mora also contends that his sentence is substantively unreasonable because

it did not reflect the proposed amendment to U.S.S.G. § 4A1.1. In light of the

totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, the

sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51-52

(2007).

AFFIRMED.

2 09-50514