United States v. Saturnino Ortiz-Lopez , 544 F. App'x 718 ( 2013 )

FILED
NOT FOR PUBLICATION NOV 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30335
Plaintiff - Appellee, D.C. No. 2:11-cr-02118-EFS-1
v.
SATURNINO ORTIZ-LOPEZ, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, Senior District Judge, Presiding
Submitted September 16, 2013**
Before: HUG, FARRIS, and CANBY, Circuit Judges.
Saturnino Ortiz-Lopez appeals from the district court’s judgment and
challenges the 60-month sentence imposed following his guilty-plea conviction for
possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Ortiz-Lopez contends that district court overstated his criminal history
*
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).
by including in his criminal history calculation two points for being on probation at
the time of the offense. He argues that this error caused the court improperly to
deny him safety-valve relief in contravention of the parties’ plea agreement, which
stated that Ortiz-Lopez “may” be eligible for safety-valve relief. We review de
novo. See United States v. Lichtenberg, 631 F.3d 1021, 1024 (9th Cir. 2011).
The district court properly included the two points in Ortiz-Lopez’s criminal
history because the record reflects that he was on probation at the time of his arrest
in this case. See U.S.S.G. § 4A1.1(d). Because Ortiz-Lopez had three criminal
history points, the district court correctly concluded that it lacked discretion to find
him safety-valve eligible. See 18 U.S.C. § 3553(f)(1); United States v. Hernandez-
Castro, 473 F.3d 1004, 1007-08 (9th Cir. 2007).
Ortiz-Lopez next contends that his sentence is substantively unreasonable.
We review for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51
(2007). The district court did not abuse its discretion. Ortiz-Lopez’s 60-month
sentence represents the statutory minimum term for his offense. See 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(i).
AFFIRMED.
2 12-30335