United States v. Lucas Ortega-Lopez

430 F. App'x 578

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 28, 2011
• Docket: 10-50374
• Status: Unpublished

Opinion

MEMORANDUM **

Lucas Ortega-Lopez appeals from the 63-month sentence imposed following his guilty-plea conviction for attempted re-entry after deportation, in violation of 8 U.S.C. § 1326, and fraud and misuse of an entry document, in violation of 18 U.S.C. § 1546(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Ortega-Lopez first contends that the district court procedurally erred by: (1) refusing to consider imposing a lower sentence in order to achieve parity with fast-track defendants; and (2) failing to adequately explain its reasons for the sentence. The record reflects that the district court considered all of the factors set forth in 18 U.S.C. § 3553(a), adequately explained the sentence, and did not otherwise procedurally err. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc).

Ortega-Lopez also contends that his sentence is substantively unreasonable. The record reflects that the 63-month sentence is substantively reasonable in light of the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Gonzalez-Zotelo, 556 F.3d 736, 739 (9th Cir.2009) (“[A] district court may not take fast-track disparities into account in sentencing under 18 U.S.C. § 3553(a)(6) because § 3553(a)(6) directs the district judge to consider only ‘unwarranted’ sentencing disparities.”).

To the extent Ortega-Lopez challenges the constitutionality of his sentence on the ground that the statutory maximum sentence for a section 1326 violation is two years imprisonment or that his sentence was wrongly enhanced because his prior conviction was not charged in the indictment, submitted to a jury, or proved beyond a reasonable doubt, these arguments are without merit. See United States v. Contreras-Hernandez, 628 F.3d 1169, 1174-75 (9th Cir.2011); see also United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006).

AFFIRMED.

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