United States v. Jaime Bibo-Lopez

dissenting:

On appeal, Bibo only challenges the procedural reasonableness of his sentence, alleging that the district court’s conclusion that there was “some reason to believe” Bibo might graduate to a contact offense was clearly erroneous.

Under United States v. Carty, we review a sentence for procedural reasonableness, including whether the district court chose “a sentence based on clearly erroneous facts.” 520 F.3d 984, 993 (9th Cir.2008). When we review for clear error, we will reverse only if there is no evidence in the record to support the district court’s finding, or if we are “left with the definite and firm conviction that a mistake has been committed.” United States v. Christensen, 732 F.3d 1094, 1103 (9th Cir.2013) (citation omitted). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” United States v. Elliott, 322 F.3d 710, 715 (9th Cir.2003) (citation omitted).

Bibo moved the district court to vary downward from the applicable Guidelines range to the statutory minimum. The district court agreed to vary downward, but not to the extent Bibo requested. The district court justified the sentence it…

FILED

NOT FOR PUBLICATION JUN 25 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50602

Plaintiff - Appellee, D.C. No. 3:13-cr-01988-GPC-

v.

MEMORANDUM*

JAIME BIBO-LOPEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted March 6, 2015 Pasadena, California Submission Vacated March 11, 2015 Resubmitted June 25, 2015

Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.

Jaime Bibo-Lopez1 pleaded guilty to one count of distributing visual

depictions of a minor engaged in sexually explicit conduct in violation of

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1 The defendant-appellant is referred to throughout the briefs as Bibo; that name is used here. U.S.C. § 2252(a)(2). The district court sentenced Bibo to six years in custody and

ten years of supervised release. Bibo argues that the…

MEMORANDUM *

Jaime Bibo-Lopez 1 pleaded guilty to one count of distributing visual depictions of a minor engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252 (a)(2). The district court sentenced Bibo to six years in custody and ten years of supervised release. Bibo argues that the district court committed procedural errors in deciding the length of his custody and the terms of two of the conditions of his supervised release. We agree.

A district court commits a procedural error if it bases its sentence on “clearly erroneous facts.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). A factual finding is clearly erroneous if it is “without support in the record.” United States v. Graf, 610 F.3d 1148, 1157 (9th Cir.2010). When the district court relies on a clearly erroneous factual conclusion in deciding a sentence, we vacate and remand for resentencing, even when other factors might have supported the sentence. United States v. Burgum, 633 F.3d 810, 816 (9th Cir.2011).

The district court' sentenced Bibo above the mandatory minimum based in part on the “real” risk that he would “graduate from the observation of [child pornography] to actual…