United States v. Jose Trujillo , 690 F. App'x 965 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50449
Plaintiff-Appellee, D.C. No. 8:15-cr-00005-JVS
v.
MEMORANDUM*
JOSE PENA-TRUJILLO, a.k.a. Jose Pena,
a.k.a. Jose Pena Portillo, a.k.a. Jose Pena
Trujillo
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted May 8, 2017**
Before: REINHARDT, LEAVY, and NGUYEN, Circuit Judges.
Jose Pena-Trujillo appeals from the district court’s judgment and challenges
the 46-month sentence imposed following his guilty-plea conviction for being an
illegal alien found in the United States following deportation, in violation of 8
*
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).
U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Pena-Trujillo contends that the district court violated Federal Rule of
Criminal Procedure 32(i)(3)(B) by failing to resolve a dispute regarding whether he
was on parole when he committed the instant offense and was thus subject to two
criminal history points under U.S.S.G. § 4A1.1(d). We review de novo the district
court’s compliance with Rule 32. See United States v. Carter, 219 F.3d 863, 866
(9th Cir. 2000). The district court expressly determined that Pena-Trujillo had
been on parole when he unlawfully reentered. Accordingly, the district court
satisfied the requirements of Rule 32. See Fed. R. Crim. P. 32(i)(3)(B). Moreover,
the district court properly relied on the presentence report in making its
determination. See United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir.
1998) (district court may accept the presentence report as reliable evidence where
the probation officer who prepared the report obtained the information from “a
reliable source…had no reason to prevaricate”).
AFFIRMED.
2 15-50449