United States v. Lopez

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 9, 2026
• Docket: 24-3160
• Status: Unpublished

Opinion

Appellate Case: 24-3160 Document: 59-1 Date Filed: 02/09/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 9, 2026 ___________________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-3160 (D.C. No. 6:24-CR-10015-JWB-1) DAMIAN F. LOPEZ, (D. Kan.)

Defendant - Appellant. ____________________________________________

ORDER AND JUDGMENT * ___________________________________________

Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and BACHARACH, Circuit Judge. ___________________________________________

This appeal involves challenges to a conviction and sentence. The

conviction involved possession of a firearm after a felony conviction. 18

U.S.C. § 922(g)(1). The sentence was five years’ imprisonment.

The defendant, Mr. Damian Lopez, claims that the underlying

criminal statute violated the Second Amendment. But we’ve rejected this

* The parties do not request oral argument, and it would not help us decide the appeal. So we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 24-3160 Document: 59-1 Date Filed: 02/09/2026 Page: 2

claim and we’re bound by our prior decision. Vincent v. Bondi, 127 F.4th

1263 (10th Cir. 2025), pet. for cert. filed (U.S. May 12, 2025) (No. 24-

1155). 1

Mr. Lopez also claims that the sentence was substantively

unreasonable. In assessing the substantive reasonableness of the sentence,

we consider whether the district court abused its discretion. United States

v. Cookson, 922 F.3d 1079, 1090 (10th Cir. 2019). Mr. Lopez contends that

the district court abused its discretion by failing to consider the need for

unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(6). We reject

this claim.

The U.S. Sentencing Commission created guidelines designed to

avoid unwarranted sentencing disparities. So a district court necessarily

considers the possibility of these disparities when applying a correctly

calculated guideline range. United States v. Garcia, 946 F.3d 1191, 1215

(10th Cir. 2020).

Mr. Lopez doesn’t question the district court’s application of the

correct guideline range (37 to 46 months’ imprisonment). The court applied

this guideline, but decided to vary upward based on Mr. Lopez’s extensive

1 The government argues that Mr. Lopez waived this argument, and we assume for the sake of argument that the argument wasn’t waived. Even in the absence of a waiver, however, Mr. Lopez admits that the plain-error standard applies and that our precedent would currently foreclose his claim. 2 Appellate Case: 24-3160 Document: 59-1 Date Filed: 02/09/2026 Page: 3

criminal history, propensity toward violence, and resistance to arrest.

Given the court’s application of the guideline range and its explanation for

an upward variance, the district court didn’t abuse its discretion when

sentencing Mr. Lopez to five years in prison.

We therefore affirm the conviction and sentence.

Entered for the Court

Robert E. Bacharach Circuit Judge