United States v. Lopez-Avila
2011 U.S. App. LEXIS 23984
| 10th Cir. | 2011Background
- Lopez-Avila, a Honduran citizen, was deported in 2006 and again in 2007 and returned unlawfully in 2009.
- He was arrested for domestic violence on July 31, 2009, leading to the illegal re-entry charge after deportation following an aggravated felony conviction.
- Lopez pleaded guilty; the PSR determined six criminal history points (five prior convictions) placing him in category IV with offense level 17, yielding a guideline range of 37–46 months.
- Neither party objected to the PSR; Lopez filed a motion for a non-guideline sentence citing disparities from fast-track programs (not available in Colorado).
- The district court denied the variance and sentenced Lopez to 37 months, bottom of the guidelines range.
- Lopez appeals claiming the court erred in not considering fast-track disparities in sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May district court consider fast-track disparities in non-fast-track districts? | Lopez argues disparities warrant a variance. | Lopez's position framed as general disparity claim; district court should consider. | District court may vary for fast-track disparities; Lopez's general argument insufficient; upheld within-guidelines sentence. |
| What is the proper standard of review for preserved sentencing objections? | Preserved objection should be reviewed for abuse of discretion. | Plain error review applies if not renewed post-sentencing. | We apply abuse-of-discretion standard; not plain error due to preservation and district-court consideration. |
| Did Lopez present a sufficient, non-generalized claim to warrant a variance based on fast-track disparities? | Argues disparities justify variance. | ||
| 0 | Generalized disparity argument is not sufficient. | Lopez's generalized argument fails; Lopez-Macias supports district discretion but requires specific showing. |
Key Cases Cited
- United States v. Lopez-Macias, 661 F.3d 485 (10th Cir. 2011) (district court may vary from guideline range for fast-track disparities)
- United States v. Arrelucea-Zamudio, 581 F.3d 142 (3d Cir. 2009) (generalized fast-track disparity arguments insufficient for variance)
- United States v. Lopez-Flores, 444 F.3d 1218 (10th Cir. 2006) (preserve objections to sentencing for proper review)
- Gall v. United States, 552 U.S. 38 (U.S. Supreme Court 2007) (abuse-of-discretion standard for sentencing decisions)
- Koon v. United States, 518 U.S. 81 (U.S. Supreme Court 1996) (per se abuse of discretion for legal errors in sentencing)
- United States v. Romero, 491 F.3d 1173 (10th Cir. 2007) (preservation and plain-error review for sentencing objections)
- United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006) (facts and standards for appellate review of sentence enhancements)