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NOT FOR PUBLICATION OCT 16 2012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