United States v. Benjamin Lopez-Patino , 518 F. App'x 527 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 13 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10288
Plaintiff - Appellee, D.C. No. 4:11-cr-03601-DCB-
DTF-1
v.
BENJAMIN LOPEZ-PATINO, a.k.a. MEMORANDUM*
Johnny Munez, AKA Robert Munoz, a.k.a.
Carlos Villa,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted April 19, 2013**
San Francisco, California
Before: SCHROEDER, SILVERMAN, and BEA, Circuit Judges.
Defendant-Appellant, Benjamin Lopez-Patino, appeals the district court’s
imposition of a 120-month sentence for his second conviction for illegal re-entry
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
after being deported, with an enhancement under 8 U.S.C. § 1326(b)(2) because
the re-entry followed a conviction for an aggravated felony (child abuse of a six-
month old baby). The statutory maximum for this offense is 20 years—double
what Appellant received.
This conviction was Appellant’s fiftieth (50th) criminal conviction.
Previously, Appellant had been convicted of a range of offenses, including drunk
driving, burglary, multiple assaults (including once where he tried to run over
someone with a vehicle), resisting arrest, child abuse, and illegal re-entry after
deportation.
Appellant failed to object to the reasonableness of his sentence at trial, so
our review is for plain error. United States v. Knows His Gun, 438 F.3d 913, 918
(9th Cir. 2006). The district court considered all of the 18 U.S.C. § 3553(a)
sentencing factors and had a logical basis for varying upwards from the advisory
Sentencing Guidelines. Considering that a prior sentence of 100 months for illegal
re-entry had not discouraged Appellant from re-entering the United States yet
again, see United States v. Lopez-Patino, 391 F.3d 1034 (9th Cir. 2004) (per
curiam), the district court did not err in sentencing him to 120 months.
AFFIRMED.
2