United States v. Humberto Delgado , 702 F. App'x 626 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10386
Plaintiff-Appellee, D.C. No. 1:14-cr-00271-LJO
v.
MEMORANDUM*
HUMBERTO BUCIO DELGADO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence O’Neill, District Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Humberto Bucio Delgado appeals the 292-month sentence imposed
following his jury-trial convictions for conspiracy to distribute methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and possession with
intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(b)(1)(A). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Delgado first contends that the district court erred by including the sentence
he received for his 2015 conviction for driving a stolen vehicle in the calculation of
his criminal history category. This claim is waived because Delgado affirmatively
advised the court, in his sentencing memorandum and at sentencing, that it was
proper to count that sentence in his criminal history score. See United States v.
Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc) (“If the defendant has both
invited the error, and relinquished a known right, then the error is waived and
therefore unreviewable.”).
Even if the claim is not waived, Delgado has not shown that the district court
plainly erred. See id. at 845-46. No evidence indicated that the stolen vehicle was
used to transport drugs or otherwise facilitate the conspiracy. Thus, driving the
stolen vehicle was not “relevant conduct” to the drug offenses, see U.S.S.G
§ 1B1.3(a)(1), nor was the state conviction accounted for in the calculation of
Delgado’s offense level. As a result, the district court did not plainly err in
calculating Delgado’s criminal history category. See U.S.S.G. § 4A1.2(a)(1) &
cmt. n.1; United States v. Cruz-Gramajo, 570 F.3d 1162, 1172 (9th Cir. 2009).
Delgado also contends that the district court erred by denying his request for
a downward departure in his criminal history category and imposed a substantively
unreasonable sentence. We review for abuse of discretion. See Gall v. United
2 16-10386
States, 552 U.S. 38, 51 (2007) (substantive reasonableness reviewed under abuse
of discretion standard); United States v. Ellis, 641 F.3d 411, 421 (9th Cir. 2011)
(criminal history departures are reviewed as part of the substantive reasonableness
of the sentence). Contrary to Delgado’s argument, the record reflects that the court
considered Delgado’s arguments and the 18 U.S.C. § 3553(a) sentencing factors.
The sentence at the low end of the guideline range is not an abuse of discretion in
light of those factors and the totality of the circumstances, including the amount of
drugs involved in the offense. See Gall, 552 U.S. at 51.
AFFIRMED.
3 16-10386