United States v. Jesus Lopez, Jr. , 472 F. App'x 820 ( 2012 )

FILED
NOT FOR PUBLICATION APR 30 2012
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. 11-10382
Plaintiff - Appellee, D.C. No. 4:11-cr-00248-DCB-
CRP-3
v.
JESUS FRANCISCO LOPEZ, Jr., AKA MEMORANDUM *
Jesus Francisco Lopez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted April 18, 2012 **
San Francisco, California
Before: KOZINSKI, Chief Judge, N.R. SMITH and CHRISTEN, Circuit Judges.
Jesus Francisco Lopez, Jr. (“Lopez”) appeals his jury conviction and
63-month sentence for attempted unlawful exportation of ammunition, in violation
*
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).
of 18 U.S.C. § 554(a). Because the parties are familiar with the factual and
procedural history of the case, we do not recount it in detail here. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
First, Lopez argues that the district court erred by denying his motion for
mistrial based on the prosecutor’s comments during closing arguments. Even
assuming that the prosecutor’s comments were improper, we conclude that any
error was harmless given the strong evidence supporting the government’s case.
See United States v. Hernandez, 476 F.3d 791, 797 (9th Cir. 2007).
Second, Lopez contends that the district court erred by giving the jury a
deliberate ignorance instruction. We conclude that the district court did not abuse
its discretion by giving the jury a deliberate ignorance instruction, especially given
the nature of Lopez’s defense that he did not have actual knowledge. See United
States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en banc); United States v.
Jewell, 532 F.2d 697, 700 (9th Cir. 1976) (en banc) (“To act ‘knowingly,’ . . . is
not necessarily to act only with positive knowledge, but also to act with an
awareness of the high probability of the of the existence of the fact in question.”).
A jury could rationally find that Lopez acted with willful blindness, or deliberate
ignorance, as to the intended destination of the ammunition. Jewell, 532 F.2d at
700.
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Finally, Lopez appeals his sentence, arguing that the district court erred by
treating the Sentencing Guidelines as mandatory and that the sentence imposed is
substantively unreasonable. We conclude that the district court did not abuse its
discretion. Gall v. United States, 552 U.S. 38, 41 (2007). The record reflects the
district court properly treated the Guidelines as advisory. United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc). After considering the 18 U.S.C.
§ 3553(a) factors, the district court imposed a 63-month sentence, which was
reasonable in light of the totality of the circumstances in this case. Id.AFFIRMED.
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