FILED
NOT FOR PUBLICATION OCT 3 2011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. 10-50428
Plaintiff - Appellee, D.C. No. 3:10-cr-00307-BEN
v.
MEMORANDUM *
ROBERTO OROPEZA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted September 27, 2011 **
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
Roberto Oropeza appeals from the 70-month sentence imposed following his
guilty-plea conviction for being a deported 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 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).
Oropeza contends that the district court procedurally erred at sentencing by
applying “recency points” under Sentencing Guideline § 4A1.1(e) (2009), without
considering the Sentencing Commission’s stated reasons for eliminating the
application of such points in proposed Amendment 742. Oropeza further contends,
for the first time on appeal, that the district court procedurally erred at sentencing
by applying, without explaining, a 16-level enhancement based on the fact that he
was previously deported subsequent to committing a crime of violence. The record
reflects that the district court properly calculated the Guidelines range, considered
the parties’ arguments and the sentencing factors set forth in 18 U.S.C. § 3553(a),
adequately explained the sentence imposed, and that the sentence is procedurally
sound. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc);
see also U.S.S.G. § 1B1.11(a) (directing district courts to “use the Guidelines
Manual in effect on the date that the defendant is sentenced”).
Oropeza also contends that the sentence is substantively unreasonable. The
record reflects that the district court’s decision not to vary from the Guidelines
range in light of a proposed Guidelines Amendment, which deleted the inclusion of
recency points from a defendant’s criminal history score, was not an abuse of
discretion and that, in light of the totality of the circumstances, the sentence within
the Guidelines range is not substantively unreasonable. See Carty, 520 F.3d at
2 10-50428
993; see also United States v. Ruiz-Apolonio, No. 10-50306, 2011 WL 4060803
(9th Cir. Sept. 14, 2011).
AFFIRMED.
3 10-50428