United States v. Jesus Lopez, Jr.

FILED
NOT FOR PUBLICATION APR 30 2012

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. 11-10382

Plaintiff - Appellee, D.C. No. 4:11-cr-00248-DCB-
CRP-3
v.

JESUS FRANCISCO LOPEZ, Jr., AKA MEMORANDUM *
Jesus Francisco Lopez,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding

Submitted April 18, 2012 **
San Francisco, California

Before: KOZINSKI, Chief Judge, N.R. SMITH and CHRISTEN, Circuit Judges.

Jesus Francisco Lopez, Jr. (“Lopez”) appeals his jury conviction and

63-month sentence for attempted unlawful exportation of ammunition, in violation

*
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).
of 18 U.S.C. § 554(a). Because the parties are familiar with the factual and

procedural history of the case, we do not recount it in detail here. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

First, Lopez argues that the district court erred by denying his motion for

mistrial based on the prosecutor’s comments during closing arguments. Even

assuming that the prosecutor’s comments were improper, we conclude that any

error was harmless given the strong evidence supporting the government’s case.

See United States v. Hernandez, 476 F.3d 791, 797 (9th Cir. 2007).

Second, Lopez contends that the district court erred by giving the jury a

deliberate ignorance instruction. We conclude that the district court did not abuse

its discretion by giving the jury a deliberate ignorance instruction, especially given

the nature of Lopez’s defense that he did not have actual knowledge. See United

States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en banc); United States v.

Jewell, 532 F.2d 697, 700 (9th Cir. 1976) (en banc) (“To act ‘knowingly,’ . . . is

not necessarily to act only with positive knowledge, but also to act with an

awareness of the high probability of the of the existence of the fact in question.”).

A jury could rationally find that Lopez acted with willful blindness, or deliberate

ignorance, as to the intended destination of the ammunition. Jewell, 532 F.2d at

700.

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 Finally, Lopez appeals his sentence, arguing that the district court erred by

treating the Sentencing Guidelines as mandatory and that the sentence imposed is

substantively unreasonable. We conclude that the district court did not abuse its

discretion. Gall v. United States, 552 U.S. 38, 41 (2007). The record reflects the

district court properly treated the Guidelines as advisory. United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc). After considering the 18 U.S.C.

§ 3553(a) factors, the district court imposed a 63-month sentence, which was

reasonable in light of the totality of the circumstances in this case. Id.

AFFIRMED.

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