United States v. Juan Lopez

FILED
NOT FOR PUBLICATION FEB 14 2013
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. 12-10269
Plaintiff - Appellee, D.C. No. 4:11-cr-00884-PJH
v.
MEMORANDUM *
JUAN RAMON PRADO LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Juan Ramon Prado Lopez appeals from the district court’s judgment and
challenges the 41-month sentence imposed following his guilty-plea conviction for
being a deported alien found in the United States, in violation of 8 U.S.C. § 1326.
*
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).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm but remand to the
district court to correct a clerical error in the judgment.
Prado Lopez contends that U.S.S.G. § 2L1.2(b)(1)(A)’s 16-level sentencing
enhancement is flawed because it is not based on empirical evidence and because it
uses prior convictions in establishing an offense level. This contention fails
because this court has recognized that the enhancement reflects Congress’s intent
to increase penalties for aliens with prior convictions. See United States v.
Ramirez-Garcia, 269 F.3d 945, 947-48 (9th Cir. 2001).
Prado Lopez also contends that his sentence is substantively unreasonable in
light of his employment history and community support. The district court did not
abuse its discretion in imposing Lopez’s sentence. See Gall v. United States, 552
U.S. 38, 51 (2007). The sentence is substantively reasonable in light of the 18
U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including
Lopez’s criminal history and prior deportations. See id.In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062
(9th Cir. 2000), we remand the case to the district court with instructions that it
delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b). See United
2 12-10269
States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte
to delete reference § 1326(b)).
AFFIRMED; REMANDED to correct the judgment.
3 12-10269