United States v. Beltran-Moreno ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-10368
Plaintiff-Appellee, D.C. No.
v.
 CR-05-00546-NVW
District of Arizona,
JOSE ANGEL BELTRAN-MORENO, aka
El Tan Beltran, Phoenix
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 07-10370
Plaintiff-Appellee, D.C. No.
v. CR-05-00546-NVW
ABRAHAM BELTRAN-MORENO, aka  District of Arizona,
Phoenix
Abram aka Abram Beltran-Moreno
aka Adrian Beltran-Figueroa,
Defendant-Appellant.
 ORDER
Filed March 10, 2009
Before: Procter Hug, Jr., Stephen Reinhardt and
A. Wallace Tashima, Circuit Judges.
ORDER
The opinion filed February 10, 2009 is amended as follows:
1. At Slip Op. 1589, replace “on top of any other sentence”
with .
2. At Slip Op. 1589, delete the text of footnote 1 and replace
it with:
2983
2984 UNITED STATES v. BELTRAN-MORENO

3. At Slip Op. 1590, replace “the district judge exercised his
discretion under 18 U.S.C. § 3553(a) to depart downward
from the Guidelines recommendation, sentencing the defen-
dants to thirty-five years in prison instead of imprisoning
them for the rest of their lives as the Guidelines suggest, but
no longer mandate” with .
4. At Slip Op. 1591, replace “For reasons beyond our under-
standing, the Beltrans have appealed their sentences, arguing
that instead of imposing a mandatory minimum of twenty
years, the district court should have consolidated the two
§ 924(c) sentences into a single five-year term and imposed
a fifteen-year minimum sentence for each of them.” with .
5. At Slip Op. 1591-92, replace “In this case, the two
§ 924(c) counts are respectively predicated on possession with
UNITED STATES v. BELTRAN-MORENO 2985
intent to distribute methamphetamine, 21 U.S.C. §§ 841(a),
(b)(1)(A)(viii), and possession with intent to distribute
cocaine, id. §§ 841(a), (b)(1)(A)(iii).” with id. §§ 841(a), (b)(1)(A)(iii);
both firearm counts also incorporated the drug conspiracy
count to which the defendants pled guilty.>
6. At Slip Op. 1592, replace “rather, they appear simply to
be ignorant of the controlling law” with . To that amended sentence, attach the following new
footnote:
37 F.3d
565, 570 (9th Cir. 1994), vacated on other grounds
516 U.S. 1022 (1995); see United States v. Andrews,
75 F.3d 552, 557-58 (9th Cir. 1996) (reaffirming
Lopez’s § 924(c) sentencing analysis). Accordingly,
the conclusion that Abraham is properly subject to
two consecutive § 924(c) sentences is inescapable.>
7. At Slip Op. 1593, replace “strong warning for the defen-
dant’s appellate counsel” with . In the following sentence, at Slip Op. 1594, insert
the word between “have counsel” and “avoided a dis-
position”.
8. At Slip Op. 1594, insert the words
between “research” and “the relevant case law”. In the sen-
tence after that, delete the words “one has been”.
9. At Slip Op. 1594, replace the sentence “We also remind
counsel of their ethical obligations not to present arguments
to this court that are legally frivolous.” with the following two
sentences: 386 U.S.
738, 744 (1967).>.
No subsequent Petitions for Rehearing or Rehearing En
Banc shall be permitted in No. 07-10368. The Petition for
Rehearing and Suggestion For Rehearing En Banc in No. 07-
10370 is due by March 26, 2009 consistent with the Clerk’s
Order filed February 25, 2009.
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The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2009 Thomson Reuters/West.