United States of America v. Allan Roberto Guevara-Lopez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALLAN ROBERTO GUEVARA-LOPEZ,
Defendant-Appellant.
No. 18-50085
D.C. No. 3:17-cr-03465-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
Allan Roberto Guevara-Lopez appeals from the district court’s judgment and
challenges the 36-month sentence imposed following his guilty-plea conviction for
being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Guevara-Lopez contends that the district court procedurally erred by
refusing to apply the current Guidelines. Contrary to Guevara-Lopez’s contention,
we review this claim for plain error, see United States v. Valencia-Barragan, 608
F.3d 1103, 1108 & n.3 (9th Cir. 2010), and conclude that there is none. The
district court correctly calculated the Guidelines range under the amended version
of U.S.S.G. § 2L1.2, and used that range as the starting point for its sentencing
decision. See Gall v. United States, 552 U.S. 38, 49 (2007). Nothing in the record
supports Guevara-Lopez’s argument that the court ignored the purpose behind the
amendment to section 2L1.2 or the policy statement authorizing fast-track
departures under U.S.S.G. § 5K3.1.
Guevara-Lopez also argues that the district court abused its discretion and
violated his constitutional rights by denying a fast-track departure and varying
upward from the Guidelines range. The record reflects that the district court
properly based its denial of the fast-track departure on individualized factors,
including Guevara-Lopez’s immigration history. See United States v. Rosales-
Gonzales, 801 F.3d 1177, 1184 (9th Cir. 2015). The court permissibly considered
Guevara-Lopez’s prior sentences when evaluating what sentence would be
sufficient to achieve deterrence, see 18 U.S.C. § 3553(a)(2)(B), and did not abuse
its discretion by varying upward from the Guidelines range to impose a sentence
greater than the one Guevara-Lopez received in 2014 for the same offense. See

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United States v. Burgos-Ortega, 777 F.3d 1047, 1056-57 (9th Cir. 2015).
AFFIRMED.

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