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NOT FOR PUBLICATION OCT 16 2012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. 11-50009

Plaintiff - Appellee, D.C. No. 2:10-cr-00568-CAS

v.

MEMORANDUM *

ARIEL GARCIA-MENDEZ, a.k.a. Julio Cesar Medrano, a.k.a. Julio Manzanares Medrano,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Submitted October 9, 2012 **

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

Ariel Garcia-Mendez appeals from the 51-month sentence imposed

following his guilty-plea conviction for being an illegal alien found in the United

* 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). States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

Garcia-Mendez contends that the district court procedurally erred by failing

to: (1) appreciate its discretion under Kimbrough v. United States, 552 U.S. 85

(2007), to deviate from the illegal-reentry Guidelines based policy grounds; and

(2) explain why it rejected Garcia-Mendez’s mitigating argument concerning his

abusive childhood. We review for plain error, see United States v. Valencia-

Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The district court

stated that it had considered Garcia-Mendez’s sentencing memorandum, in which

he asserted his policy challenge under Kimbrough, and then imposed a sentence 26

months below the Guidelines range. Its failure to do more was not plain error. See

United States v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011).

Furthermore, the district court specifically addressed Garcia-Mendez’s abusive

childhood.

Garcia-Mendez argues that because the district court did not consider

departing downward to account for his cultural assimilation, it failed to adequately

consider all the 18 U.S.C. § 3553(a) sentencing factors. This argument lacks merit.

Garcia-Mendez did not raise his cultural assimilation before the district court. In

any event, we review a district court’s denial of a request for a downward

2 11-50009 departure as part of the overall substantive reasonableness of the sentence. See

United States v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008). In light of the totality

of the circumstances and the section 3553(a) factors, the 51-month sentence is

substantively reasonable. See Gall v. United States, 522 U.S. 38, 51 (2007).

Garcia-Mendez also maintains that U.S.S.G. § 2L1.2(b)(1)(A)’s 16-level

sentencing enhancement is constitutionally flawed because it is not based on

empirical evidence or historical facts. This contention fails because he does not

identify any constitutional provision that was allegedly violated. Furthermore, this

court has recognized that the enhancement reflects Congress’s intent to increase

penalties for aliens with prior convictions. See United States v. Ramirez-Garcia,

269 F.3d 945, 947-48 (9th Cir. 2001).

Finally, Garcia-Mendez contends that Almendarez-Torres v. United States,

523 U.S. 224 (1998), has been undermined and that 8 U.S.C. § 1326(b)(2) is

unconstitutional. This contention is foreclosed by United States v. Beng-Salazar,

452 F.3d 1088, 1091 (9th Cir. 2006).

AFFIRMED.

3 11-50009