                                                                           FILED
                            NOT FOR PUBLICATION                             APR 19 2012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. 10-10579

               Plaintiff - Appellee,             D.C. No. 4:08-cr-01126-JMR

  v.
                                                 MEMORANDUM *
RAUL CHRISTIAN LOPEZ-ARROYO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                      John M. Roll, District Judge, Presiding

                             Submitted April 17, 2012 **

Before:        LEAVY, PAEZ, and BEA, Circuit Judges.

       Raul Christian Lopez-Arroyo appeals from the 192-month sentence imposed

following his guilty-plea conviction for conspiracy to possess with intent to

distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), and




          *
             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).
846; and possession with intent to distribute marijuana, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(A)(vii).

      Lopez-Arroyo contends that he was sentenced in violation of the Sixth

Amendment because his base offense level was enhanced on the basis of facts not

found by a jury. This argument fails because his sentence did not exceed the

statutory maximum of life imprisonment. See United States v. Chavez, 611 F.3d

1006, 1009 (9th Cir. 2010) (per curiam).

      Lopez-Arroyo also contends that the district court clearly erred by imposing

a two-level enhancement for possession of a dangerous weapon under U.S.S.G.

§ 2D1.1(b)(1) and a three-level aggravating role enhancement under U.S.S.G.

§ 3B1.1(b). In connection with this argument, he contends that the district court

was required to use the standard of clear and convincing evidence in determining

whether the government had carried its burden of establishing that the

enhancements were warranted. Lopez-Arroyo’s arguments lack merit. The

enhancements were subject to the preponderance of the evidence standard, as they

did not have an “extremely disproportionate effect on the sentence relative to the

offense of conviction.” See United States v. Dare, 425 F.3d 634, 642 (9th Cir.

2005) (internal quotation marks omitted). Applying this standard, the district court

did not clearly err in imposing the enhancement for possession of a dangerous


                                           2                                   10-10579
weapon. See United States v. Pitts, 6 F.3d 1366, 1372-73 (9th Cir. 1993). Nor did

the district court clearly err in determining that Lopez-Arroyo managed or

supervised criminal activity that involved at least five participants. See United

States v. Garcia, 497 F.3d 964, 969-70 (9th Cir. 2007).

      Lopez-Arroyo also contends that his sentence is substantively unreasonable.

Lopez-Arroyo’s within-Guidelines sentence is substantively reasonable under the

totality of circumstances and in light of the 18 U.S.C. § 3553(a) sentencing factors.

See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

      Lastly, Lopez-Arroyo contends that the district court violated his Sixth

Amendment right to counsel by failing to continue sentencing sua sponte. The

district court did not abuse its discretion by failing to continue sentencing. See

United States v. Orlando, 553 F.3d 1235, 1237-38 (9th Cir. 2009). To the extent

Lopez-Arroyo contends that he was denied the right to the effective assistance of

counsel at sentencing, we decline to consider such a claim on direct appeal. See

United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003).

      We are in receipt of Lopez-Arroyo’s pro se letter, received on January 12,

2012, withdrawing his motion to relieve counsel and proceed pro se. Accordingly,

Lopez-Arroyo’s motion, received on December 19, 2011, is denied.

      AFFIRMED.


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