United States v. Eduardo Lopez

487 F. App'x 409

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 19, 2012
• Docket: 12-50028
• Status: Unpublished

Opinion

MEMORANDUM **

Eduardo Lopez appeals the 73-month sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.

Because Lopez failed to object to the district court’s alleged procedural errors at sentencing, we review for plain error. United States v. Sylvester Norman Knows His Gun, III, 438 F.3d 913, 918 (9th Cir.2006). Contrary to Lopez’s assertion, the district court did not treat the Sentencing Guidelines as establishing a presumptive sentence, but rather, properly treated the Sentencing Guidelines as advisory, and properly considered the § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 50 n. 6,128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

We review the substantive reasonableness of a sentence for abuse of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009). When a district court properly applies the Sentencing Guidelines, “ ‘it is probable that the sentence is reasonable.’ ” United States v. Carty, 520 F.3d 984, 994 (9th Cir.2008) (en banc) (quoting Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). Here, the district court properly applied the Guidelines and imposed a sentence at the lower end of the applicable Guidelines range based on a reasonable application of the § 3553(a) factors. The district court also acted within its discretion in denying Lopez a downward departure based on his health problems. See e.g. United States v. Tadeo, 222 F.3d 623, 627 (9th Cir.2000). We conclude that the sentence imposed by the district court was substantively reasonable.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.