United States v. Lizarraga-Beltran, 012810 FED9, 09-10123

Docket Nº:09-10123
Opinion Judge:HUG, SKOPIL and BEEZER, Circuit Judges
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RODRIGO LIZARRAGA-BELTRAN, Defendant - Appellant.
Judge Panel:Before: HUG, SKOPIL and BEEZER, Circuit Judges.
Case Date:January 28, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

RODRIGO LIZARRAGA-BELTRAN, Defendant - Appellant.

No. 09-10123

United States Court of Appeals, Ninth Circuit

January 28, 2010

NOT FOR PUBLICATION

Submitted September 2, 2009 [**] San Francisco, California.

Appeal from the United States District Court for the District of Nevada, No. 2:08-CR-00097-JCM-RJJ, James C. Mahan, District Judge, Presiding

Before: HUG, SKOPIL and BEEZER, Circuit Judges.

MEMORANDUM [*]

Rodrigo Lizarraga-Beltran appeals his 84-month sentence for violation of 8 U.S.C. § 1326, unlawful reentry of a removed alien, as substantively unreasonable. He specifically argues that the district court unreasonably applied the 16-level enhancement under U.S. Sentencing Guidelines § 2L1.2(b)(1)(A)(i) for a previous felony drug-trafficking conviction for which the sentence imposed exceeded 13 months. Mr. Lizarraga contends this enhancement was substantively unreasonable under the 18 U.S.C. § 3553(a) factors because "the staleness of his predicate felony, his chronic health issues and advanced age are all unique circumstances" that require a sentence lower than the Guidelines range. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review the substantive reasonableness of a sentence for abuse of discretion. United States v. Carty, 520 F.3d 984, 988 (9th Cir. 2008). We affirm.

Mr. Lizarraga primarily relies on United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), to argue that the predicate drug-trafficking offense was "stale." In Amezcua-Vasquez, we concluded that although "[i]t is not per se unreasonable to apply the enhancement when the conviction is too stale to be counted for purposes of the criminal history," it was unreasonable to apply the enhancement under the circumstances of that case. Id. at 1054. The facts of this case are entirely different.

As opposed to the defendant in Amezcua-Vasquez, Mr. Lizarraga's 2004 predicate conviction was not too stale to be counted for purposes of criminal history. See id. Indeed, his conviction was only five years old rather than 25 years old as in Amezcua-Vasquez. See id. at 1052. Mr. Lizarraga committed the predicate offense 11 years prior to his § 1326 conviction, rather than 25 years previously as in Amezcua-Vasquez. See id. Mr. Amezcua had a criminal-history category of II. Id. Mr. Lizarraga's was VI"the...

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