                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 17 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10386

                Plaintiff-Appellee,             D.C. No. 1:14-cr-00271-LJO

 v.
                                                MEMORANDUM*
HUMBERTO BUCIO DELGADO,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Lawrence O’Neill, District Judge, Presiding

                          Submitted November 15, 2017**

Before:      CANBY, TROTT, and GRABER, Circuit Judges.

      Humberto Bucio Delgado appeals the 292-month sentence imposed

following his jury-trial convictions for conspiracy to distribute methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and possession with

intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1),



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(b)(1)(A). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Delgado first contends that the district court erred by including the sentence

he received for his 2015 conviction for driving a stolen vehicle in the calculation of

his criminal history category. This claim is waived because Delgado affirmatively

advised the court, in his sentencing memorandum and at sentencing, that it was

proper to count that sentence in his criminal history score. See United States v.

Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc) (“If the defendant has both

invited the error, and relinquished a known right, then the error is waived and

therefore unreviewable.”).

      Even if the claim is not waived, Delgado has not shown that the district court

plainly erred. See id. at 845-46. No evidence indicated that the stolen vehicle was

used to transport drugs or otherwise facilitate the conspiracy. Thus, driving the

stolen vehicle was not “relevant conduct” to the drug offenses, see U.S.S.G

§ 1B1.3(a)(1), nor was the state conviction accounted for in the calculation of

Delgado’s offense level. As a result, the district court did not plainly err in

calculating Delgado’s criminal history category. See U.S.S.G. § 4A1.2(a)(1) &

cmt. n.1; United States v. Cruz-Gramajo, 570 F.3d 1162, 1172 (9th Cir. 2009).

      Delgado also contends that the district court erred by denying his request for

a downward departure in his criminal history category and imposed a substantively

unreasonable sentence. We review for abuse of discretion. See Gall v. United


                                        2                              16-10386
States, 552 U.S. 38, 51 (2007) (substantive reasonableness reviewed under abuse

of discretion standard); United States v. Ellis, 641 F.3d 411, 421 (9th Cir. 2011)

(criminal history departures are reviewed as part of the substantive reasonableness

of the sentence). Contrary to Delgado’s argument, the record reflects that the court

considered Delgado’s arguments and the 18 U.S.C. § 3553(a) sentencing factors.

The sentence at the low end of the guideline range is not an abuse of discretion in

light of those factors and the totality of the circumstances, including the amount of

drugs involved in the offense. See Gall, 552 U.S. at 51.

      AFFIRMED.




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