FILED
NOT FOR PUBLICATION APR 28 2011
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. 10-50374
Plaintiff - Appellee, D.C. No. 3:09-cr-03956-BTM
v.
MEMORANDUM *
LUCAS ORTEGA-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
Lucas Ortega-Lopez appeals from the 63-month sentence imposed following
his guilty-plea conviction for attempted re-entry after deportation, in violation of
8 U.S.C. § 1326, and fraud and misuse of an entry document, in violation of
18 U.S.C. § 1546(a). 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).
Ortega-Lopez first contends that the district court procedurally erred by: (1)
refusing to consider imposing a lower sentence in order to achieve parity with
fast-track defendants; and (2) failing to adequately explain its reasons for the
sentence. The record reflects that the district court considered all of the factors set
forth in 18 U.S.C. § 3553(a), adequately explained the sentence, and did not
otherwise procedurally err. See United States v. Carty, 520 F.3d 984, 991-93 (9th
Cir. 2008) (en banc).
Ortega-Lopez also contends that his sentence is substantively unreasonable.
The record reflects that the 63-month sentence is substantively reasonable in light
of the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-52
(2007); see also United States v. Gonzalez-Zotelo, 556 F.3d 736, 739 (9th Cir.
2009) (“[A] district court may not take fast-track disparities into account in
sentencing under 18 U.S.C. § 3553(a)(6) because § 3553(a)(6) directs the district
judge to consider only ‘unwarranted’ sentencing disparities.”).
To the extent Ortega-Lopez challenges the constitutionality of his sentence
on the ground that the statutory maximum sentence for a section 1326 violation is
two years imprisonment or that his sentence was wrongly enhanced because his
prior conviction was not charged in the indictment, submitted to a jury, or proved
beyond a reasonable doubt, these arguments are without merit. See United States
2 10-50374
v. Contreras-Hernandez, 628 F.3d 1169, 1174-75 (9th Cir. 2011); see also United
States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir. 2006).
AFFIRMED.
3 10-50374