Bahena-Carreno

ORDER

We replace the memorandum disposition, filed January 27, 2012, with a new memorandum disposition filed contemporaneously herewith. As amended, Gualberto Bahena-Carreno’s petition for panel rehearing is denied. No further petitions for rehearing shall be entertained.

MEMORANDUM

Gualberto Bahena-Carreno appeals from the 36-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Bahena-Carreno contends that the district court erred in denying a downward departure for cultural assimilation because the court misapplied the parameters for granting a departure and relied on clearly erroneous facts. The record reflects that Bahena-Carreno did not request a downward departure for cultural assimilation.

The record is clear that the court entertained Bahena-Carreno’s arguments as part of its consideration of the 18 U.S.C. § 3553 (a) sentencing factors, granted a downward variance based on the staleness of Bahena-Carreno’s prior conviction, and explained why a further variance was not warranted. See United States v. Carty, 520 F.3d 984, 991-93…