                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 03 2012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. 11-50380

               Plaintiff - Appellee,              D.C. No. 3:11-cr-00380-BEN

  v.
                                                  MEMORANDUM *
DIEGO HERRERA-LOPEZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                                                        **
                              Submitted June 26, 2012

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Diego Herrera-Lopez appeals from the 87-month sentence imposed

following his guilty-plea conviction for being an illegal alien in possession of a

firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2);




          *
             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).
and for possession of methamphetamine with intent to distribute, in violation of 21

U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Herrera-Lopez first contends that the district court violated his due process

rights by applying the two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A)

without determining whether he knew the firearm was stolen. Because the

enhancement applies regardless of whether Herrera-Lopez knew or had reason to

believe that the firearm was stolen, the district court did not err. See U.S.S.G.

§ 2K2.1(b)(4)(A) cmt. n.8(B); United States v. Ellsworth, 456 F.3d 1146, 1150-51

(9th Cir. 2006). Likewise, the district court did not violate Federal Rule of

Criminal Procedure 32 by failing to resolve the question whether Herrera-Lopez

knew the firearm was stolen, nor was Herrera-Lopez entitled to an evidentiary

hearing regarding this issue. See United States v. Saeteurn, 504 F.3d 1175, 1181

(9th Cir. 2007) (Rule 32 “is limited to factual disputes which affect the temporal

term of the sentence the district court imposes”); United States v. Real-Hernandez,

90 F.3d 356, 362 (9th Cir. 1996) (“There is no general right to an evidentiary

hearing at sentencing.”).

      Herrera-Lopez also contends that the district court’s failure to resolve the

factual dispute regarding his knowledge that the gun was stolen violated Apprendi

v. New Jersey, 530 U.S. 466 (2000). This argument is without merit. See United


                                           2                                     11-50380
States v. Hernandez-Guardado, 228 F.3d 1017, 1027 (9th Cir. 2000).

      Herrera-Lopez next contends that the district court erred by denying a minor

role reduction under U.S.S.G. § 3B1.2. The district court did not clearly err in

determining that Herrera-Lopez was not a minor participant. See United States v.

Cantrell, 433 F.3d 1269, 1282-83 (9th Cir. 2006).

      Herrera-Lopez finally contends that the district court procedurally erred by

applying a presumption of reasonableness to the within-Guidelines sentence. This

contention is not supported by the record. To the extent that Herrera-Lopez

challenges his sentence as being substantively unreasonable, the sentence at the

bottom of the advisory Sentencing Guidelines range is substantively reasonable in

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

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

      AFFIRMED.




                                          3                                   11-50380
