                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 29 2016

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



                               FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 14-50036

       Plaintiff - Appellee,                     D.C. No. 2:13-cr-00094-JLS-2
                                                 Central District of California,
       v.                                        Los Angeles

ANTONIO QUEVEDO, AKA Kora, AKA
Korita,                                          MEMORANDUM*

       Defendant - Appellant.




UNITED STATES OF AMERICA,                        No. 14-50176

       Plaintiff - Appellee,                     D.C. No. 2:13-cr-00094-JLS-1
                                                 Central District of California,
       v.                                        Los Angeles

ADELINA CRISTOBAL
                                                 MEMORANDUM*
       Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                Judge Josephine L. Staton, District Judge, Presiding



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                           Submitted October 20, 2015**
                               Pasadena, California


Before: PREGERSON and CALLAHAN, Circuit Judges, and BASTIAN, District
Judge***

      Defendant Adelina Cristobal appeals the 108-month sentence imposed after

she pleaded guilty to Conspiracy to Use Interstate Commerce Facilities in the

Commission of Murder-for-Hire, in violation of 18 U.S.C. § 1958(a); Defendant

Antonio Quevedo appeals the 84-month sentence imposed after he pleaded guilty

to the same crime. Both defendants assert the district court erred in applying

U.S.S.G. § 2D1.4(a)(2)’s cross-reference to U.S.S.G. § 2A1.5(a)(1), which resulted

in a 5-level increase to the base offense level. In addition, Defendant Cristobal

argues that her sentence is unreasonable. Because the district court properly

applied the cross-reference, and because Defendant Cristobal’s 108-month

sentence is reasonable, we affirm.

      Defendants’ arguments are foreclosed by our recent decision in United

States v. Temkin, 797 F.3d 682 (9th Cir. 2015). In that case, we held the correct



       **
             This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
       ***
              The Honorable Stanley A. Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
                                          2
base offense level for a conviction for Using Interstate Commerce Facilities in the

Commission of Murder-For-Hire, in violation of 18 U.S.C. § 1958 was 37, which

was computed by using the cross-reference contained in U.S.S.G. § 2E1.4(a)(2),

applying U.S.S.G. § 2A1.5’s base offense level of 33, and adding four levels for

the exchange of money (the pecuniary enhancement).1 Id. at 695. As the district

court calculated the Guideline range in the same manner, it did not commit

procedural error.

      Defendant Cristobal appeals her sentence of 108 months imprisonment. The

district court’s factual findings are entitled to deference. United States v.

Ferryman, 444 F.3d 1183, 1186 (9th Cir. 2006). It concluded that Cristobal was

the driving force behind the murder-for-hire conspiracy, and the record supports

this conclusion. Ultimately, the district court sentenced Cristobal to 12 months

below the Guideline range to reflect, in part, her lack of criminal history and her

acceptance of responsibility. Cristobal’s sentence of 108 months is not




      1
       As a general rule, one three-judge panel cannot reconsider or overrule the
decision of a prior panel unless it is clearly irreconcilable with an intervening
higher authority. United States v. Jefferson, 791 F.3d 1013, 1016 n.2 (9th Cir.
2015). Once a panel resolves an issue in a precedential opinion, the matter is
deemed resolved, unless overruled by the court itself en banc, or by the U.S.
Supreme Court. Hart v. Massanari, 266 F.3d 1166, 1171 (9th Cir. 2001).
                                            3
substantively unreasonable, in light of all of the 18 U.S.C. § 3553(a) factors and

the totality of the circumstances.

      Additionally, the imposition of the three years of supervised release was not

plain error. “[R]eversal is warranted only where there has been (1) error; (2) that is

plain; (3) that affects substantial rights; and (4) where the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011). To determine whether the court’s

error affected “substantial rights” we ask whether “the probability of a different

result is sufficient to undermine confidence in the outcome of the proceeding.”

United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

      The Guidelines recommend no supervised release for deportable aliens

likely to be deported when the statute of conviction does not require it, unless the

judge “determines” that supervised release would “provide an added measure of

deterrence and protection.” Sentencing Guidelines § 5D1.1(c) & cmt. n.5. There is

no record of the judge making that determination.

      Here, the failure of the judge to make a record of the supervised release

determination did not affect Cristobal’s substantial rights. At the time of the

sentencing hearing, it was not clear that Cristobal would be deported given that her

daughter and husband lived in the United States and depended on her for their


                                            4
medical care. Had the error been brought to the court’s attention, there is no doubt

the result would have been the same.

      We AFFIRM, but direct the district court to amend the written judgment to

reflect that Defendant Cristobal was convicted of Conspiracy to Use Interstate

Commerce Facilities in the Commission of Murder-For-Hire. See Fed. R. Crim. P.

36 (“After giving any notice it considers appropriate, the court may at any time

correct a clerical error in a judgment, order, or other part of the record, or correct

an error in the record arising from oversight or omission.”).




                                            5
