United States v. Diego Herrera-Lopez

MEMORANDUM

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); 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…