                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 13 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-10288

              Plaintiff - Appellee,              D.C. No. 4:11-cr-03601-DCB-
                                                 DTF-1
  v.

BENJAMIN LOPEZ-PATINO, a.k.a.                    MEMORANDUM*
Johnny Munez, AKA Robert Munoz, a.k.a.
Carlos Villa,

              Defendant - Appellant.


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

                            Submitted April 19, 2013**
                             San Francisco, California

Before: SCHROEDER, SILVERMAN, and BEA, Circuit Judges.

       Defendant-Appellant, Benjamin Lopez-Patino, appeals the district court’s

imposition of a 120-month sentence for his second conviction for illegal re-entry


        *
             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).
after being deported, with an enhancement under 8 U.S.C. § 1326(b)(2) because

the re-entry followed a conviction for an aggravated felony (child abuse of a six-

month old baby). The statutory maximum for this offense is 20 years—double

what Appellant received.

      This conviction was Appellant’s fiftieth (50th) criminal conviction.

Previously, Appellant had been convicted of a range of offenses, including drunk

driving, burglary, multiple assaults (including once where he tried to run over

someone with a vehicle), resisting arrest, child abuse, and illegal re-entry after

deportation.

      Appellant failed to object to the reasonableness of his sentence at trial, so

our review is for plain error. United States v. Knows His Gun, 438 F.3d 913, 918

(9th Cir. 2006). The district court considered all of the 18 U.S.C. § 3553(a)

sentencing factors and had a logical basis for varying upwards from the advisory

Sentencing Guidelines. Considering that a prior sentence of 100 months for illegal

re-entry had not discouraged Appellant from re-entering the United States yet

again, see United States v. Lopez-Patino, 391 F.3d 1034 (9th Cir. 2004) (per

curiam), the district court did not err in sentencing him to 120 months.

      AFFIRMED.




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