United States v. Matias Lopez-Fernandez

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NOT FOR PUBLICATION JUL 03 2014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