United States v. Rodrigo Lizarraga-Beltran , 363 F. App'x 516 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 28 2010
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. 09-10123
Plaintiff - Appellee, D.C. No. 2:08-CR-00097-JCM-
RJJ
v.
RODRIGO LIZARRAGA-BELTRAN, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted September 2, 2009 **
San Francisco, California
Before: HUG, SKOPIL and BEEZER, Circuit Judges.
Rodrigo Lizarraga-Beltran appeals his 84-month sentence for violation of
8 U.S.C. § 1326, unlawful reentry of a removed alien, as substantively
unreasonable. He specifically argues that the district court unreasonably applied
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
the 16-level enhancement under U.S. Sentencing Guidelines § 2L1.2(b)(1)(A)(i)
for a previous felony drug-trafficking conviction for which the sentence imposed
exceeded 13 months. Mr. Lizarraga contends this enhancement was substantively
unreasonable under the 18 U.S.C. § 3553(a) factors because “the staleness of his
predicate felony, his chronic health issues and advanced age are all unique
circumstances” that require a sentence lower than the Guidelines range. We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review the
substantive reasonableness of a sentence for abuse of discretion. United States v.
Carty, 520 F.3d 984, 988 (9th Cir. 2008). We affirm.
Mr. Lizarraga primarily relies on United States v. Amezcua-Vasquez, 567
F.3d 1050 (9th Cir. 2009), to argue that the predicate drug-trafficking offense was
“stale.” In Amezcua-Vasquez, we concluded that although “[i]t is not per se
unreasonable to apply the enhancement when the conviction is too stale to be
counted for purposes of the criminal history,” it was unreasonable to apply the
enhancement under the circumstances of that case. Id. at 1054. The facts of this
case are entirely different.
As opposed to the defendant in Amezcua-Vasquez, Mr. Lizarraga’s 2004
predicate conviction was not too stale to be counted for purposes of criminal
history. See id. Indeed, his conviction was only five years old rather than 25 years
old as in Amezcua-Vasquez. See id. at 1052. Mr. Lizarraga committed the
predicate offense 11 years prior to his § 1326 conviction, rather than 25 years
previously as in Amezcua-Vasquez. See id. Mr. Amezcua had a criminal-history
category of II. Id. Mr. Lizarraga’s was VI—the highest category. Mr. Amezcua
had no § 2L1.2 crimes in the past twenty years. Id. at 1056. Mr. Lizarraga had
three convictions after the predicate offense that would have qualified for § 2L1.2
enhancements: felony possession of narcotics, felony driving or taking of a vehicle,
and the aggravated felony of receiving stolen property.
In discussing the § 3553 factors, the district court stated that Mr. Lizarraga’s
“long sentence” was “warranted by the defendant’s criminal history.” The district
court did not abuse its discretion in making this determination. See United States
v. Becerril-Lopez, 541 F.3d 881, 894 (9th Cir. 2008) (concluding that the district
court did not abuse its discretion because “it considered the § 3553(a) factors, and
indicated that it considered the most salient feature of Becerril’s individual
circumstances to be his extensive criminal history”).
Likewise, the district court did not abuse its discretion in concluding that
Mr. Lizarraga’s extensive criminal history outweighed the countervailing
considerations of his poor health and opportunity to work on the family ranch.
“Circumstances may well make clear that the [sentencing] judge rests his decision
upon the Commission’s own reasoning that the Guidelines sentence is a proper
sentence (in terms of § 3553(a) and other congressional mandates) in the typical
case, and that the judge has found that the case before him is typical.’” Carty, 520
F.3d at 995 (quoting Rita v. United States, 551 U.S. 338, 357 (2007)).
AFFIRMED.