Free Mandate of 9th Circuit - District Court of Arizona - Arizona

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, N0. 05-10179
D.C. N0. CR-02-00624-ROS
Plaintiff- Appellee,
V.
JUDGMENT
SALVADOR CEJA—LOPEZ,
Defendmit — Appellamt o ·
Appeal from the United States District Court for the District of Arizona
(Phoenix).
This cause came on to be heard on the Transcript of the Record from the
United States District Court for the District of Arizona (Phoenix) and was duly
submitted. - o
On consideration whereof; it is now here ordered and adjudged by this
Court, that the judgment of the said District Court in this cause be, and hereby is
AFFIRMED.
Filed and entered 02/28/06
A mus c0Pv
CATHY A. CATTERSON
Clork qteCcur1 `
A1"rEs1r· _ . _
r MAR.22 2006
- bV= ·" · Jr l
Case 2:O2—cr—OO624—ROS Document 72 Filed O3/22/2 °` "_

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NOT FOR PUBLICATION
UNITED STATES COURT or APPEALS D
FOR THE NINTH CIRCUIT FEB gg gggg
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UNITED STATES OF AMERICA, No. 05-10179
Plaintiff - Appellee, D.C. No. CR-02-00624-ROS l
v. eg., Mi; .. i- _ ” - . -4 ’ . ,_ 4 r ¥_.,,_L_ ___
MEMORANDUM`
SALVADOR CEJA-LOPEZ,
Defendant - Appellant. _
Appeal from the United States District Ccu1·t
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Submitted February 16, 2006** _ l `
San Francisco, California
Before: REINI-IARDT, PAEZ and TALLMAN, Circuit Judges.
._ Salvador Ceja-Lopez appeals the fifty-seyen month prison sentence imposed
pursuant to his plea of guilty to illegal re-entry after deportation under 8 U.S.C. §
l326(a) with a sentencing enhancement under 8 U.S.C. § l326(b)(2). He argues
* This disposition is not appropriate for publication and may not be cited
to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
H This panel unanimously finds this case suitable for decision without `
oral argument. See Fed. R. App. P. 34(a)(2).
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that the district court (1) failed to resolve a factual dispute regarding findings in
n the pre—sentence report in violation of Federal Rule of Criminal Procedure 32, (2)
erroneously added three criminal history points based upon findings that were
supported by a preponderance of the evidence rather than proved beyond a
reasonable doubt, and (3) imposed an unreasonable sentence as a result of its p
failure to consider properly the sentencing factors under 18 U.S.C. § 3553 and to
him a cultural assimilation. U J it- 3 iiii i iiii U inii C S C
Ceja-Lopez did not challenge the accuracy of any factual finding in the pre-
U sentence report. District courts may rely on undisputed findings in a pre—sentence
report; it is only when a defendant raises an objection that a court is required under
Federal Rule of Criminal Procedure 32 to resolve the purported dispute. United
States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc). Because no
factual dispute was raised, the district court was not required to make a finding
under Rule 32.
' . The district court applied ·$l8¤4Al~5i£dr-£l£¤P¥BQf.i&1.€l€te1i1t1aininga-Ceja-P-
Lopez’s criminal history category. District courts are required to apply a
preponderance of the evidence standard to Sentencing Guidelines factual issues, U
including criminal history points. See id. (directing district courts to apply 3
standards of proof consistent with United States v. Howard, 894 F .2di 1085, 1090
p 2
Case 2:O2—cr—OO624—ROS Document 72 Filed O3/22/2006 Page 3 of 4

U (9th Cir. 1990), which held, "thc party bearing the burden of proof will be required .
. to meet a ‘preponderance ofthe evidence’ standa.rd" on Guidelines issues).
The district court properly considered the sentencing factors under 18
U.S.C. § 3553, including Ceja-Lopez’s criminal history and the nature of his
crime, in sentencing him to the minimum prison term advised by the Guidelines.
Further, we do not have jurisdiction to review the district judge’s decision not to l f
ii iinl grant Ceja-Lopez a downward departureifor cultiiral- See Uniteolwl if in
States v. Linn, 362 F .3d 1261, 1262 (9th Cir. 2004). Under the applicable
sentencing statutes, Ceja-Lopez’s sentence is not unreasonable.
Accordingly, we affirm the sentence imposed by the district court.
i AFFIRMED. 2 I
) 7
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