United States v. Raul Lopez-Arroyo

FILED
NOT FOR PUBLICATION APR 19 2012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. 10-10579
Plaintiff - Appellee, D.C. No. 4:08-cr-01126-JMR
v.
MEMORANDUM *
RAUL CHRISTIAN LOPEZ-ARROYO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Submitted April 17, 2012 **
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Raul Christian Lopez-Arroyo appeals from the 192-month sentence imposed
following his guilty-plea conviction for conspiracy to possess with intent to
distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), and
*
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).
846; and possession with intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A)(vii).
Lopez-Arroyo contends that he was sentenced in violation of the Sixth
Amendment because his base offense level was enhanced on the basis of facts not
found by a jury. This argument fails because his sentence did not exceed the
statutory maximum of life imprisonment. See United States v. Chavez, 611 F.3d
1006, 1009 (9th Cir. 2010) (per curiam).
Lopez-Arroyo also contends that the district court clearly erred by imposing
a two-level enhancement for possession of a dangerous weapon under U.S.S.G.
§ 2D1.1(b)(1) and a three-level aggravating role enhancement under U.S.S.G.
§ 3B1.1(b). In connection with this argument, he contends that the district court
was required to use the standard of clear and convincing evidence in determining
whether the government had carried its burden of establishing that the
enhancements were warranted. Lopez-Arroyo’s arguments lack merit. The
enhancements were subject to the preponderance of the evidence standard, as they
did not have an “extremely disproportionate effect on the sentence relative to the
offense of conviction.” See United States v. Dare, 425 F.3d 634, 642 (9th Cir.
2005) (internal quotation marks omitted). Applying this standard, the district court
did not clearly err in imposing the enhancement for possession of a dangerous
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weapon. See United States v. Pitts, 6 F.3d 1366, 1372-73 (9th Cir. 1993). Nor did
the district court clearly err in determining that Lopez-Arroyo managed or
supervised criminal activity that involved at least five participants. See United
States v. Garcia, 497 F.3d 964, 969-70 (9th Cir. 2007).
Lopez-Arroyo also contends that his sentence is substantively unreasonable.
Lopez-Arroyo’s within-Guidelines sentence is substantively reasonable under the
totality of circumstances and in light of the 18 U.S.C. § 3553(a) sentencing factors.
See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
Lastly, Lopez-Arroyo contends that the district court violated his Sixth
Amendment right to counsel by failing to continue sentencing sua sponte. The
district court did not abuse its discretion by failing to continue sentencing. See
United States v. Orlando, 553 F.3d 1235, 1237-38 (9th Cir. 2009). To the extent
Lopez-Arroyo contends that he was denied the right to the effective assistance of
counsel at sentencing, we decline to consider such a claim on direct appeal. See
United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003).
We are in receipt of Lopez-Arroyo’s pro se letter, received on January 12,
2012, withdrawing his motion to relieve counsel and proceed pro se. Accordingly,
Lopez-Arroyo’s motion, received on December 19, 2011, is denied.
AFFIRMED.
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