NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 17 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50085

Plaintiff-Appellee, D.C. No. 3:17-cr-03465-LAB

v.

MEMORANDUM*

ALLAN ROBERTO GUEVARA-LOPEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted January 15, 2019**

Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

Allan Roberto Guevara-Lopez appeals from the district court’s judgment and

challenges the 36-month sentence imposed following his guilty-plea conviction for

being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* 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). Guevara-Lopez contends that the district court procedurally erred by

refusing to apply the current Guidelines. Contrary to Guevara-Lopez’s contention,

we review this claim for plain error, see United States v. Valencia-Barragan, 608

F.3d 1103, 1108 & n.3 (9th Cir. 2010), and conclude that there is none. The

district court correctly calculated the Guidelines range under the amended version

of U.S.S.G. § 2L1.2, and used that range as the starting point for its sentencing

decision. See Gall v. United States, 552 U.S. 38, 49 (2007). Nothing in the record

supports Guevara-Lopez’s argument that the court ignored the purpose behind the

amendment to section 2L1.2 or the policy statement authorizing fast-track

departures under U.S.S.G. § 5K3.1.

Guevara-Lopez also argues that the district court abused its discretion and

violated his constitutional rights by denying a fast-track departure and varying

upward from the Guidelines range. The record reflects that the district court

properly based its denial of the fast-track departure on individualized factors,

including Guevara-Lopez’s immigration history. See United States v. Rosales-

Gonzales, 801 F.3d 1177, 1184 (9th Cir. 2015). The court permissibly considered

Guevara-Lopez’s prior sentences when evaluating what sentence would be

sufficient to achieve deterrence, see 18 U.S.C. § 3553(a)(2)(B), and did not abuse

its discretion by varying upward from the Guidelines range to impose a sentence

greater than the one Guevara-Lopez received in 2014 for the same offense. See

2 18-50085 United States v. Burgos-Ortega, 777 F.3d 1047, 1056-57 (9th Cir. 2015).

AFFIRMED.

3 18-50085