NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 21-30086 21-30087 Plaintiff-Appellee,

v. D.C. Nos. 4:20-cr-06014-SMJ-1 4:20-cr-06013-SMJ-1 HERNAN SICAIROS-TAMAYO, AKA Jose Beltran-Acosta, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

Submitted February 15, 2022**

Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.

In these consolidated appeals, Hernan Sicairos-Tamayo appeals from the

district court’s judgments and challenges the 41-month sentence imposed

following his guilty-plea conviction for being an alien in the United States after

deportation, in violation of 8 U.S.C. § 1326, and 8-month consecutive sentence

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). imposed upon revocation of supervised release. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

Sicairos-Tamayo contends that, because the Guidelines overstated the

seriousness of his criminal history, the district court erred by denying his objection

to his criminal history category. Whether framed as a request for a downward

departure under U.S.S.G. § 4A1.3(b) or a variance under the court’s 18 U.S.C.

§ 3553(a) analysis, we review this claim as part of the sentence’s substantive

reasonableness, see United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006),

which Sicairos-Tamayo also challenges. The district court did not abuse its

discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). Notwithstanding

Sicairos-Tamayo’s mitigating circumstances, the aggregate 49-month sentence is

substantively reasonable in light of the applicable § 3553(a) sentencing factors and

the totality of the circumstances, including Sicairos-Tamayo’s three prior

unauthorized reentry convictions and his failure to be deterred by sentences of 24,

27, and 37 months. See Gall, 552 U.S. at 51; see also U.S.S.G. § 7B1.3(f).

AFFIRMED.

2 21-30086 & 21-30087