United States of America v. Constantino Lopez-Leon

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CONSTANTINO LOPEZ-LEON,
Defendant - Appellant.
No. 12-50592
D.C. No. 3:12-cr-03395-BEN
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted May 14, 2013**
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Constantino Lopez-Leon appeals from the district court’s judgment and
challenges the 24-month sentence imposed following his guilty-plea conviction for
illegal entry, in violation of 8 U.S.C. § 1325. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
FILED
MAY 20 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Lopez-Leon first contends that the government breached its promise in the
plea agreement to recommend a four-level downward departure under U.S.S.G.
§ 5K3.1. Although the government initially filed a sentencing summary chart that
mistakenly omitted the stipulated downward departure, the error was corrected
before it ever came to the attention of the district court. In its sentencing
memorandum and at sentencing, the government unequivocally stood by its
recommendation in favor of the departure, and the district court granted the
departure. Under these circumstances, we conclude that Lopez-Leon received the
benefit of his bargain: “the presentation of a united front to the court.” United
States v. Alcala-Sanchez, 666 F.3d 571, 575 (9th Cir. 2012) (internal quotations
omitted).
Lopez-Leon next contends that the district court procedurally erred by
failing to consider his mitigating arguments, and by failing to explain adequately
the reasons for the sentence. The record reflects that the district court
acknowledged Lopez-Leon’s arguments, but disagreed that they warranted a lower
sentence. The court also explained adequately why, in light of Lopez-Leon’s
criminal history and his failure to be deterred by his prior sentences, a more severe
sentence than the stipulated Guidelines range was appropriate.

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Lopez-Leon last contends that the district court gave excessive weight to
deterrence over the other 18 U.S.C. § 3553(a) sentencing factors and imposed a
substantively unreasonable sentence. The district court did not abuse its discretion
in imposing Lopez-Leon’s sentence. See Gall v. United States, 552 U.S. 38, 51
(2007). In light of the totality of the circumstances and the section 3553(a)
sentencing factors, the sentence is substantively reasonable. See id.; United States
v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (“The weight to be given
the various factors in a particular case is for the discretion of the district court.”).
AFFIRMED.

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