United States v. Rangel-Nino

22 F. App'x 909

Opinion

MEMORANDUM

Footnotes

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Raymundo Rangel-Nino appeals his 29-month, 1-week sentence after a guilty-plea conviction to being found in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant .to 18 U.S.C. § 3742, and affirm, in part, and dismiss, in part.

Rangel-Nino first contends the district court erred by not finding his prior assault and possession of cocaine convictions to be related pursuant to U.S.S.G. § 4A1.2(a)(2). Because Rangel-Nino did not object at the sentencing hearing, we review sentencing determinations for plain error. See United States v. Scrivner, 114 F.3d 964, 970 (9th Cir.1997).

Rangel-Nino’s contention is without merit. Although the government concedes the district court erred, Rangel-Nino’s substantial rights were not affected as his criminal history category would have remained the same. See United States v. Allen, 153 F.3d 1037, 1046 (9th Cir.1998).

Rangel-Nino also contends the district court erred by denying him a downward departure for overrepresentation of his criminal history score. The district court’s discretionary decision not to depart downward from the sentencing guidelines, however, is not renewable on appeal. See United States v. Lipman, 133 F.3d 726, 729 (9th Cir.1998).

AFFIRMED in part, DISMISSED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.