United States v. Gutierrez-Lopez

117 F. App'x 580

Opinion

MEMORANDUM

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Jose Gutierrez-Lopez appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326.

Gutierrez-Lopez contends that in light of Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the federal Sentencing Guidelines are unconstitutional as a whole. This contention is foreclosed by United States v. Ameline, 376 F.3d 967, 981-82 (9th Cir.2004) (declining invitation, after holding that Blakely does apply to sentence enhancements based on facts determined by the district judge, to declare Guidelines unconstitutional as a whole).

Gutierrez-Lopez also contends that the illegal reentry guideline, U.S.S.G. § 2L1.2, under which he received a 16-level enhancement based on a prior conviction for a crime of violence, should be stricken following Blakely and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because that guideline is not severable from other guideline provisions whose constitutionality is undermined by Blakely. This contention lacks merit. See United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004) (order) (holding that recidivism enhancements under § 2L1.2 remain constitutional after Blakely).

We lack jurisdiction to review the district court’s denial of Gutierrez-Lopez’s request for a downward departure based on cultural assimilation because there is no indication in the record that the district court believed it lacked the discretion to depart on that ground. United States v. Pizzichiello, 272 F.3d 1232, 1239 (9th Cir. 2002).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.