FILED

NOT FOR PUBLICATION JUL 03 2012

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. 11-50489

Plaintiff - Appellee, D.C. No. 3:11-cr-03812-BEN

v.

MEMORANDUM *

ALDIN ABIDAN MARTINEZ-

AGUSTIN,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

** Submitted June 26, 2012

Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

Aldin Abidan Martinez-Agustin appeals from the 18-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

* 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.

Martinez-Agustin contends that the district court abused its discretion when

it imposed an above-Guidelines sentence. He claims that the district court

impermissibly punished him for being unable to verify his political asylum claim

and gave too much weight to his prior drunk driving convictions. The record

reflects that the district court properly considered the 18 U.S.C. § 3553(a)

sentencing factors and did not otherwise procedurally err. See United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Moreover, the district court

did not abuse its discretion by imposing an upward variance to account for

Martinez-Agustin’s criminal history, failure to be deterred, and risk of recidivism.

See United States v. Orlando, 553 F.3d 1235, 1239 (9th Cir. 2009). Martinez-

Agustin’s sentence is substantively reasonable in light of the totality of the

circumstances and the section 3553(a) factors. See Gall v. United States, 552 U.S.

38, 51 (2007).

AFFIRMED.

2 11-50489