United States v. Rico , 398 F. App'x 245 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 04 2010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. 06-50700
Plaintiff - Appellee, D.C. No. CR-06-00583-RGK
v.
MEMORANDUM *
FERNANDO HUERTA RICO,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Fernando Huerta Rico appeals from the 84-month sentence imposed
following his guilty-plea conviction for being a deported 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 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).
Rico contends that the district court erred by applying a drug trafficking
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because two prior felony
convictions allegedly occurred when Rico was a juvenile. This contention fails
because Rico admitted to having been convicted for the offenses as an adult. See
U.S.S.G. § 2L1.2, cmt. n. 1(A)(iv); see also United States v. Flores, 172 F.3d 695,
700–01 (9th Cir. 1999) (defendant waived challenge by expressly agreeing to
enhancement). Even if it was true that the offenses occurred when he was a
juvenile, it is undisputed that he agreed that he was prosecuted as an adult.
Rico also contends that his sentence is substantively unreasonable. The
record reflects that there was no procedural error and that, in light of the totality of
the circumstances, the sentence within the Guidelines range is substantively
reasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc).
AFFIRMED.
2 06-50700