FILED
NOT FOR PUBLICATION JUL 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10325
Plaintiff - Appellee, D.C. No. 2:12-cr-02035-SMM
v.
MEMORANDUM*
MATIAS LOPEZ-FERNANDEZ, a.k.a. Jose
Lopez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
Matias Lopez-Fernandez appeals from the district court’s judgment and
challenges the 30-month sentence imposed following his jury-trial conviction for
reentry of a removed alien, 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).
Lopez-Fernandez contends that the district court procedurally erred at sentencing
and violated his due process rights by relying on an improper factor, namely, the desire
to deter other defendants from exercising their Sixth Amendment right to trial. We
review for plain error, see United States v. Vanderwerfhorst, 576 F.3d 929, 934-35 (9th
Cir. 2009), and find none. The record belies Lopez-Fernandez’s contention that the
district court sought to deter other defendants from exercising their Sixth Amendment
rights, but rather reflects the court’s concern with deterring false testimony. See
generally United States v. Dunnigan, 507 U.S. 87, 96 (1993) (“[A] defendant’s right to
testify does not include a right to commit perjury.”).
Lopez-Fernandez also contends that his sentence is substantively unreasonable.
We review the substantive reasonableness of the sentence for abuse of discretion. See
Gall v. United States, 552 U.S. 38, 51 (2007). The above-Guidelines sentence is
substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the
totality of the circumstances, including Lopez-Fernandez’s criminal history and the
need for deterrence and to protect the public. See id.
Finally, we decline to consider Lopez-Fernandez’s argument regarding the
district court’s alleged bias and antagonism toward him. See United States v. Kama,
394 F.3d 1236, 1238 (9th Cir. 2005) (issues not raised in opening brief are generally
waived).
AFFIRMED.
2 13-10325