United States of America v. Romeo Lopez-Hernandez

This disposition isn’t appropriate for publication and isn’t 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NOT FOR PUBLICATION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.
ROMEO LOPEZ-HERNANDEZ,
Defendant - Appellant.
No. 11-50478
D.C. No. 3:11-cr-03190-GT-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Senior District Judge, Presiding
Submitted September 6, 2012**
Pasadena, California
Before: KOZINSKI, Chief Judge, WATFORD and HURWITZ, Circuit
Judges.
Romeo Lopez-Hernandez challenges his sentence to twenty-four months’
incarceration and three years’ supervised release for illegally entering the United
States after being deported.
FILED
SEP 11 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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1. Lopez-Hernandez’s sentence to twenty-four months’ incarceration is less
than the statutory maximum of ten years, but six months above the maximum
recommended by the federal Sentencing Guidelines. The Sentencing Guidelines are
only advisory. Gall v. United States, 128 S. Ct. 586, 594 (2007). As directed by 18
U.S.C. § 3553(a), the sentencing judge weighed several factors, including the
recommendation of the Sentencing Guidelines, the fact that Lopez-Hernandez had
been thrice convicted of illegal entry and the fact that he was previously sentenced to
eighteen months for the same offense. The judge didn’t abuse his discretion by giving
him six additional months.
2. As Lopez-Hernandez’s attorney told the judge at sentencing, the Sentencing
Guidelines recommend against imposing supervised release on deportable aliens under
“ordinar[y]” circumstances. See U.S. Sentencing Guidelines Manual § 5D1.1(c). But
Lopez-Hernandez’s circumstances are not ordinary. Supervised release is appropriate
for deportable aliens when “it would provide an added measure of deterrence and
protection.” U.S. Sentencing Guidelines Manual § 5D1.1 cmt. 5. As the sentencing
judge noted, Lopez-Hernandez was “violating supervised release” when he committed
the offense, so additional supervised release was warranted.
AFFIRMED.

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