United States of America v. Diego Herrera-Lopez

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DIEGO HERRERA-LOPEZ,
Defendant - Appellant.
No. 11-50380
D.C. No. 3:11-cr-00380-BEN
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Diego Herrera-Lopez appeals from the 87-month sentence imposed
following his guilty-plea conviction for being an illegal alien in possession of a
firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2);
FILED
JUL 03 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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and for possession of methamphetamine with intent to distribute, in violation of 21
U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Herrera-Lopez first contends that the district court violated his due process
rights by applying the two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A)
without determining whether he knew the firearm was stolen. Because the
enhancement applies regardless of whether Herrera-Lopez knew or had reason to
believe that the firearm was stolen, the district court did not err. See U.S.S.G.
§ 2K2.1(b)(4)(A) cmt. n.8(B); United States v. Ellsworth, 456 F.3d 1146, 1150-51
(9th Cir. 2006). Likewise, the district court did not violate Federal Rule of
Criminal Procedure 32 by failing to resolve the question whether Herrera-Lopez
knew the firearm was stolen, nor was Herrera-Lopez entitled to an evidentiary
hearing regarding this issue. See United States v. Saeteurn, 504 F.3d 1175, 1181
(9th Cir. 2007) (Rule 32 “is limited to factual disputes which affect the temporal
term of the sentence the district court imposes”); United States v. Real-Hernandez,
90 F.3d 356, 362 (9th Cir. 1996) (“There is no general right to an evidentiary
hearing at sentencing.”).
Herrera-Lopez also contends that the district court’s failure to resolve the
factual dispute regarding his knowledge that the gun was stolen violated Apprendi
v. New Jersey, 530 U.S. 466 (2000). This argument is without merit. See United

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States v. Hernandez-Guardado, 228 F.3d 1017, 1027 (9th Cir. 2000).
Herrera-Lopez next contends that the district court erred by denying a minor
role reduction under U.S.S.G. § 3B1.2. The district court did not clearly err in
determining that Herrera-Lopez was not a minor participant. See United States v.
Cantrell, 433 F.3d 1269, 1282-83 (9th Cir. 2006).
Herrera-Lopez finally contends that the district court procedurally erred by
applying a presumption of reasonableness to the within-Guidelines sentence. This
contention is not supported by the record. To the extent that Herrera-Lopez
challenges his sentence as being substantively unreasonable, the sentence at the
bottom of the advisory Sentencing Guidelines range is substantively reasonable in
light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing
factors. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
AFFIRMED.

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