United States v. Lopez-Vivas

288 F. App'x 327

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 16, 2008
• Docket: No. 05-50835
• Status: Published

Opinion

MEMORANDUM

**

Douglas Enrique Lopez-Vivas (“Lopez-Vivas”) appeals the sentence imposed following his conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. We affirm,

X

T „. , ,,,,,, . s, hancement provisions of 8 U.S.C. § 1326 are unconstitutional under Apprendi v. New Jersey 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is, as he concedes, foreclosed by this court>s decisions. See States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005) (citing United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2001)). As he further con. cedeg; Wg ^ that u.s.g.G. § 3EU(b) is unconstitutional is also foredosecL United States v. Baldrich, 471 F.3d 1110, 1115 (9th Cir.2006); United States v. Espinoza-Cano, 456 F.3d 1126, 1136 (9th Cir.2006).

II

Lopez-Vivas argues that his sen-fence should be reversed because the district court did not consider — or adequately consider — the 18 U.S.C. § 3553(a) factors, and because his sentence is treasonable. The reeord reflects’ however’ that the dis" trict court correctly calculated the advisory Guidelines range, considered the § 3553(a) factors, weighed mitigating and aggravating circumstances, and imposed a reasonable sentence. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc). His argument that the advisory Guidelines range was unreasonable due to so called “double counting” was rejected in United States v. Luna-Herrera, 149 F.3d 1054, 1056 (9th Cir.1998). His contention that the district court should have explained why out of all the possible sentences, 51 months was the only reasonable sentence is meritless. See United States v. Maciel-Vasquez, 458 F.3d 994, 995 (9th Cir.2006) (“[Njeither Booker nor our circuit precedent impose any requirement that the district court state why it chose a particular sentence rather than other potential sentences.”). Finally, Lopez — Vivas’s argument that the district comb should have compared his sentence to sentences imposed on those charged under the fast-track program also fails. See United States v. Banuelos-Rodriguez, 215 F.3d 969, 978 (9th Cir.2000) (en banc).

Ill

Lopez-Vivas contends that the district court committed plain error by imposing a drug testing release condition without specifying a maximum testing frequency. A showing of plain error is re- . , , , ,.. . ,, . quired because he did not challenge the release condition before the district court. See Maciel-Vasquez, 458 F.3d at 996 n. 3. Although the district court erred in this regard, see United States v. Stephens, 424 F.3d 876, 882-83 (9th Cir.2005), the error was not plain because any “prejudice caused by the district comb’s decision to impose this condition did not seriously affeet the fairness, integrity, or public reputation of the judicial proceedings.” Maciel-Vasquez, 458 F.3d at 996.

Finally, Lopez-Vivas argues that the district court erred by imposing as a eondition of supervised release that he report to the Probation Office upon release from prison or reentry into the United States. As he concedes, however, this argument is foreclosed by United States v. Rodriguez-Rodriguez, 441 F.3d 767, 772 (9th Cir. 2006).

AFFIRMED

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