NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50085
Plaintiff-Appellee, D.C. No. 3:17-cr-03465-LAB
v.
MEMORANDUM*
ALLAN ROBERTO GUEVARA-LOPEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
Allan Roberto Guevara-Lopez appeals from the district court’s judgment and
challenges the 36-month sentence imposed following his guilty-plea conviction for
being a removed alien found in the United States, 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 Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Guevara-Lopez contends that the district court procedurally erred by
refusing to apply the current Guidelines. Contrary to Guevara-Lopez’s contention,
we review this claim for plain error, see United States v. Valencia-Barragan, 608
F.3d 1103, 1108 & n.3 (9th Cir. 2010), and conclude that there is none. The
district court correctly calculated the Guidelines range under the amended version
of U.S.S.G. § 2L1.2, and used that range as the starting point for its sentencing
decision. See Gall v. United States, 552 U.S. 38, 49 (2007). Nothing in the record
supports Guevara-Lopez’s argument that the court ignored the purpose behind the
amendment to section 2L1.2 or the policy statement authorizing fast-track
departures under U.S.S.G. § 5K3.1.
Guevara-Lopez also argues that the district court abused its discretion and
violated his constitutional rights by denying a fast-track departure and varying
upward from the Guidelines range. The record reflects that the district court
properly based its denial of the fast-track departure on individualized factors,
including Guevara-Lopez’s immigration history. See United States v. Rosales-
Gonzales, 801 F.3d 1177, 1184 (9th Cir. 2015). The court permissibly considered
Guevara-Lopez’s prior sentences when evaluating what sentence would be
sufficient to achieve deterrence, see 18 U.S.C. § 3553(a)(2)(B), and did not abuse
its discretion by varying upward from the Guidelines range to impose a sentence
greater than the one Guevara-Lopez received in 2014 for the same offense. See
2 18-50085
United States v. Burgos-Ortega, 777 F.3d 1047, 1056-57 (9th Cir. 2015).
AFFIRMED.
3 18-50085