UNITED STATES v. PIMENTEL LOPEZ (2018)

MEMORANDUM **

Jesus Pimentel-Lopez appeals the sentence imposed by the district court on remand from his previous appeal, United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016). We affirm.

The district court complied with our mandate by recalculating the applicable Guidelines range based on the premise that Pimentel-Lopez’s crimes involved less than 50 grams of methamphetamine, see Pimentel-Lopez, 859 F.3d at 1143. Our mandate did not prevent the district court from taking into account the large quantities of methamphetamine attributable to Pimentel-Lopez’s co-conspirators and associated with the criminal undertaking as a whole as part of its consideration of the 18 U.S.C. § 3553(a) factors.

The district court did not rely on erroneous facts in sentencing Pimentel-Lopez. Evidence adduced at trial established there was a large quantity of drugs associated with the conspiracy as a whole, and it was undisputed that Pimentel-Lopez had been convicted of two prior drug offenses. See United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010) (citing United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc) ). Contrary to Pimentel-Lopez, the court did not state that the two prior drug offenses failed to deter Pimentel-Lopez from committing additional offenses.

Any reliance by the district court on the government’s erroneous assertion that Pimentel-Lopez had failed to appear for deportation proceedings did not constitute plain error. See Rosales-Mireles v. United States, ––– U.S. ––––, 138 S.Ct. 1897, 1904–05, 201 L.Ed.2d 376 (2018). Pimentel-Lopez’s substantial rights were not affected because there is not a reasonable probability that Pimentel-Lopez would have received a lower sentence absent the error. See United States v. Christensen, 732 F.3d 1094, 1102 (9th Cir. 2013).

The district court’s imposition of the sentence was not a clear error of judgment given the totality of the circumstances (including Pimentel-Lopez’s two prior felony drug convictions, his lack of legitimate financial or work history, which suggested he relied on criminal activity to support himself, and the sentences of his co-conspirators, which were not disproportionate given his role in the conspiracy), and therefore the sentence is substantively reasonable. See United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en banc).

AFFIRMED.