United States v. Jesus Pimentel-Lopez ( 2018 )

FILED
NOT FOR PUBLICATION
NOV 20 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30206
Plaintiff-Appellee, D.C. No.
2:13-cr-00024-SEH-1
v.
JESUS PIMENTEL-LOPEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted November 8, 2018
Portland, Oregon
Before: TALLMAN and IKUTA, Circuit Judges, and BOUGH,** District Judge.
Jesus Pimentel-Lopez appeals the sentence imposed by the district court on
remand from his previous appeal, United States v. Pimentel-Lopez, 859 F.3d 1134
(9th Cir. 2016). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
The district court complied with our mandate by recalculating the applicable
Guidelines range based on the premise that Pimentel-Lopez’s crimes involved less
than 50 grams of methamphetamine, see Pimentel-Lopez, 859 F.3d at 1143. Our
mandate did not prevent the district court from taking into account the large
quantities of methamphetamine attributable to Pimentel-Lopez’s co-conspirators
and associated with the criminal undertaking as a whole as part of its consideration
of the 18 U.S.C. § 3553(a) factors.
The district court did not rely on erroneous facts in sentencing Pimentel-
Lopez. Evidence adduced at trial established there was a large quantity of drugs
associated with the conspiracy as a whole, and it was undisputed that Pimentel-
Lopez had been convicted of two prior drug offenses. See United States v.
Spangle, 626 F.3d 488, 497 (9th Cir. 2010) (citing United States v. Hinkson, 585
F.3d 1247, 1262 (9th Cir. 2009) (en banc)). Contrary to Pimentel-Lopez, the court
did not state that the two prior drug offenses failed to deter Pimentel-Lopez from
committing additional offenses.
Any reliance by the district court on the government’s erroneous assertion
that Pimentel-Lopez had failed to appear for deportation proceedings did not
constitute plain error. See Rosales-Mireles v. United States, 138 S. Ct. 1897,
1904–05 (2018). Pimentel-Lopez’s substantial rights were not affected because
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there is not a reasonable probability that Pimentel-Lopez would have received a
lower sentence absent the error. See United States v. Christensen, 732 F.3d 1094,
1102 (9th Cir. 2013).
The district court’s imposition of the sentence was not a clear error of
judgment given the totality of the circumstances (including Pimentel-Lopez’s two
prior felony drug convictions, his lack of legitimate financial or work history,
which suggested he relied on criminal activity to support himself, and the
sentences of his co-conspirators, which were not disproportionate given his role in
the conspiracy), and therefore the sentence is substantively reasonable. See United
States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en banc).
AFFIRMED.
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