United States v. Allan Guevara-Lopez

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 17 2019 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50085 Plaintiff-Appellee, D.C. No. 3:17-cr-03465-LAB

v.

MEMORANDUM*

ALLAN ROBERTO GUEVARA-LOPEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted January 15, 2019** Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

Allan Roberto Guevara-Lopez appeals from the district court’s judgment and challenges the 36-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).

Guevara-Lopez contends that the district court procedurally erred by refusing to apply the current Guidelines. Contrary to Guevara-Lopez’s contention, we review this claim for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 & n.3 (9th Cir. 2010), and conclude that there is none. The district court correctly calculated the Guidelines range under the amended version of U.S.S.G. § 2L1.2, and used that range as the starting point for its sentencing decision. See Gall v. United States, 552 U.S. 38, 49 (2007). Nothing in the record supports Guevara-Lopez’s argument that the court ignored the purpose behind the amendment to section 2L1.2 or the policy statement authorizing fast-track departures under U.S.S.G. § 5K3.1.

Guevara-Lopez also argues that the district court abused its discretion and violated his constitutional rights by denying a fast-track departure and varying upward from the Guidelines range. The record reflects that the district court properly based its denial of the fast-track departure on individualized factors, including Guevara-Lopez’s immigration history. See United States v. Rosales- Gonzales, 801 F.3d 1177, 1184 (9th Cir. 2015). The court permissibly considered Guevara-Lopez’s prior sentences when evaluating what sentence would be sufficient to achieve deterrence, see 18 U.S.C. § 3553(a)(2)(B), and did not abuse its discretion by varying upward from the Guidelines range to impose a sentence greater than the one Guevara-Lopez received in 2014 for the same offense. See

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

AFFIRMED.

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