FILED

NOT FOR PUBLICATION JAN 27 2012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. 11-50149

Plaintiff - Appellee, D.C. No. 3:09-cr-03836-WQH v.

MEMORANDUM * MANUEL ELISEO MARTINEZ- ESCOBEDO,

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Submitted January 17, 2012 ** Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.

Manuel Eliseo Martinez-Escobedo appeals from the 75-month sentence imposed following his 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. Appellant. P. 34(a)(2). § 1291, and we affirm.

Martinez-Escobedo contends that the below-Guidelines sentence was substantively unreasonable. The record reflects that the sentence is substantively reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 51 (2007).

Martinez-Escobedo’s contention that Nijhawan v. Holder, 129 S. Ct. 2294 (2009), overruled Almendarez-Torres v. United States, 523 U.S. 224 (1998), is foreclosed by United States v. Valdovinos-Mendez, 641 F.3d 1031, 1035-36 (9th Cir. 2011).

AFFIRMED.

2 11-50149