United States v. Eduardo Lopez

FILED
NOT FOR PUBLICATION NOV 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50028
Plaintiff - Appellee, D.C. No. 2:11-cr-00333-ABC-1
v.
MEMORANDUM *
EDUARDO ROBERTO BITIA LOPEZ,
AKA Eduardo Roberto Bitia, AKA
Manuel Corado Lopez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
**
Submitted November 13, 2012
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Eduardo Lopez appeals the 73-month sentence imposed following his guilty
plea to being a deported alien found in the United States in violation of 8 U.S.C. §
*
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).
1326. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and
we affirm.
Because Lopez failed to object to the district court’s alleged procedural
errors at sentencing, we review for plain error. United States v. Sylvester Norman
Knows His Gun, III, 438 F.3d 913, 918 (9th Cir. 2005). Contrary to Lopez’s
assertion, the district court did not treat the Sentencing Guidelines as establishing a
presumptive sentence, but rather, properly treated the Sentencing Guidelines as
advisory, and properly considered the § 3553(a) sentencing factors. See Gall v.
United States, 552 U.S. 38, 50 n.6 (2007).
We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2008). When a
district court properly applies the Sentencing Guidelines, “‘it is probable that the
sentence is reasonable.’” United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008)
(en banc) (quoting Rita v. United States, 551 U.S. 338, 551 (2007)). Here, the
district court properly applied the Guidelines and imposed a sentence at the lower
end of the applicable Guidelines range based on a reasonable application of the §
3553(a) factors. The district court also acted within its discretion in denying Lopez
a downward departure based on his health problems. See e.g. United States v.
2 12-50028
Tadeo, 222 F.3d 623, 627 (9th Cir. 2000). We conclude that the sentence imposed
by the district court was substantively reasonable.
AFFIRMED.
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