FILED

NOT FOR PUBLICATION OCT 16 2012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. 12-50071

Plaintiff - Appellee, D.C. No. 3:11-cr-04475-BEN

v.

MEMORANDUM *

ROSARIO RODRIGUEZ-PORTILLO,

Defendant - Appellant.

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

Submitted October 9, 2012 **

Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

Rosario Rodriguez-Portillo appeals from the 24-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.

* 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). § 1291, and we affirm.

Rodriguez-Portillo contends that the district court procedurally erred by

(1) failing to use the Guidelines sentencing range as a starting point, (2) failing to

keep the Guidelines range in mind during sentencing, and (3) relying on deterrence

and the need to protect the public to the exclusion of other 18 U.S.C. § 3553(a)

factors. The record does not support these contentions. The district court

determined the correct Guidelines sentencing range, listened to Rodriguez-

Portillo’s mitigating arguments, considered the section 3553(a) factors, and

sufficiently explained its reasons for imposing an above-Guidelines sentence. See

United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).

Rodriguez-Portillo also contends that his sentence is substantively

unreasonable. In light of the totality of the circumstances and the section 3553(a)

sentencing factors, the sentence is substantively reasonable. See Gall v. United

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

AFFIRMED.

2 12-50071