                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 20 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-30206

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00024-SEH-1
 v.

JESUS PIMENTEL-LOPEZ,                            MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                     Argued and Submitted November 8, 2018
                                Portland, Oregon

Before: TALLMAN and IKUTA, Circuit Judges, and BOUGH,** District Judge.

      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.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
      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, 138 S. Ct. 1897,

1904–05 (2018). Pimentel-Lopez’s substantial rights were not affected because


                                          2
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.




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