NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 21 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50367

                Plaintiff-Appellee,             D.C. No. 3:17-cr-01112-CAB

 v.
                                                MEMORANDUM*
TOMAS RAMIREZ-CRUZ,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                 Cathy Ann Bencivengo, District Judge, Presiding

                           Submitted August 15, 2018**

Before:      FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

      Tomas Ramirez-Cruz appeals from the district court’s judgment and

challenges the 51-month sentence imposed following his guilty-plea conviction for

being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.

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



      *
             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).
      Ramirez-Cruz contends that the district court procedurally erred by relying

on clearly erroneous facts, believing that the sentence must be equal to or greater

than his most recent prior sentence, and failing to respond adequately to his

mitigating arguments. We review for plain error, see United States v. Valencia-

Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude that there is none.

      First, Ramirez-Cruz did not object to the factual statements contained in the

presentence report regarding his background and, therefore, the district court was

entitled to rely on them when evaluating the 18 U.S.C. § 3553(a) sentencing

factors. See United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en

banc). Second, the record does not support Ramirez-Cruz’s contention that the

district court believed it was required to impose a sentence no lower than his

previous sentence of 51months; instead, the court permissibly considered the prior

sentence when evaluating what sentence would be sufficient to achieve deterrence.

See 18 U.S.C. § 3553(a)(2)(B). Finally, the district court explicitly addressed

Ramirez-Cruz’s mitigating arguments and did not plainly err by failing to provide

a fuller explanation. See Rita v. United States, 551 U.S. 338, 358-59 (2007).

      Ramirez-Cruz also contends that the sentence is substantively unreasonable.

The district court did not abuse its discretion. See Gall v. United States, 552 U.S.

38, 51 (2007). The within-Guidelines sentence is substantively reasonable in light

of the section 3553(a) sentencing factors and the totality of the circumstances. See


                                          2                                      17-50367
United States v. Burgos-Ortega, 777 F.3d 1047, 1056-57 (9th Cir. 2015).

      AFFIRMED.




                                       3                                  17-50367