United States v. Lomeli-Mences ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50452
Plaintiff-Appellee,
v.  D.C. No.
CR-07-00075-SGL
HUGO ARMANDO LOMELI-MENCES,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
February 3, 2009—Pasadena, California
Filed May 28, 2009
Before: Harry Pregerson, Susan P. Graber, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Graber
6299
6302 UNITED STATES v. LOMELI-MENCES
COUNSEL
Robison D. Harley, Jr., Santa Ana, California, for the
defendant-appellant.
Jerry A. Behnke, Assistant United States Attorney, Riverside,
California, for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Defendant Hugo Armando Lomeli-Mences pleaded guilty
to entering the United States after having been deported, in
violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, he
raises two arguments challenging the district court’s calcula-
tion of his sentence under the United States Sentencing
Guidelines (“U.S.S.G.”): (1) the district court abused its dis-
UNITED STATES v. LOMELI-MENCES 6303
cretion in finding that his prior convictions for false imprison-
ment and false personation were not “related” for purposes of
calculating his criminal history score; and (2) the district court
erred in assessing criminal history points for those two
offenses, because Defendant was sentenced for them after he
committed the instant offense.1 We disagree with both conten-
tions and affirm.
FACTUAL AND PROCEDURAL HISTORY
Defendant is a citizen of Mexico. On June 24, 1997, he was
convicted in a California state court of unlawful sexual inter-
course, in violation of California Penal Code section 261.5. In
1998, Defendant was lawfully deported and removed from the
United States. In September 1999, he reentered the United
States without authorization.
According to the Presentence Report, on April 16, 2000,
Defendant harassed his ex-girlfriend over the phone, sexually
assaulted her, and then attempted to bribe her not to testify
against him. Six years later, on August 5, 2006, police officers
recognized Defendant as the subject of a felony warrant relat-
ing to the 2000 incident with his ex-girlfriend. When the offi-
cers confronted Defendant, he provided a false name and
fraudulent identification. The officers arrested him both for
false imprisonment of the ex-girlfriend in 2000 and for “false
personation,” that is, presenting fake identification.
On August 6, 2006, federal immigration authorities placed
a detainer against Defendant under the wrong name, Juan Jose
Meneces. The detainer document notified state officials that
federal immigration authorities had initiated an “investiga-
tion” to determine whether Defendant was subject to removal
from the country.
1
Defendant also raised a third argument regarding calculation of the
criminal history score but expressly withdrew that issue at oral argument.
We therefore do not reach it.
6304 UNITED STATES v. LOMELI-MENCES
On September 22, 2006, Defendant was sentenced in state
court for the false imprisonment and false personation
charges. Those two offenses were listed separately in the
Santa Barbara County Superior Court’s docket. They were
never formally consolidated into one case for sentencing, but
the sentencing occurred on the same day in the same court.
The state court sentenced Defendant to 16 months in prison
for each offense, to run concurrently. He began serving his
sentence immediately.
On May 23, 2007, the government filed an information in
the Central District of California, charging Defendant with
being an illegal alien found in the United States following
deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). On
June 25, 2007, Defendant pleaded guilty to the single-count
information. In exchange for the guilty plea, the government
agreed to stipulate to a four-level, early-disposition downward
departure. The parties further agreed to a sentence of impris-
onment at the low end of the Sentencing Guidelines range,
with the criminal history category to be calculated by the dis-
trict court. The plea agreement provided that immigration
authorities found Defendant in San Bernardino County, Cali-
fornia, on or about April 23, 2007.
Before sentencing, Defendant made three objections to the
Presentence Report’s criminal history calculation, only two of
which are relevant here. First, he argued that his 2006 false
imprisonment and false personation convictions were related
and, therefore, the district court should assess only three crim-
inal history points for both offenses together, rather than three
for each offense. Second, he argued that the district court
incorrectly assessed three criminal history points pursuant to
U.S.S.G. section 4A1.1(d) and (e), which allow for additions
if the defendant committed the instant offense while under
any criminal justice sentence or while imprisoned on such a
sentence. Defendant claimed that he committed the instant
offense on August 6, 2006, the date on which immigration
authorities lodged the detainer against him. Because he was
UNITED STATES v. LOMELI-MENCES 6305
not sentenced on the false imprisonment and false imperson-
ation charges until September 2006, he argues, he was neither
under a criminal justice sentence nor imprisoned for those
offenses when he committed the instant offense.
The district court rejected Defendant’s contentions.
Although acknowledging that the concurrent sentence
weighed in favor of finding that the false personation and
false imprisonment offenses were related, the court ruled that
the two crimes were unrelated because they were factually
and temporally distinct from one another. As a result, the
court assessed three criminal history points for each offense,
for a total of six points. The court also held that Defendant
had admitted to being “found in” the United States on April
23, 2007, as that was the date to which he admitted in the plea
agreement. On April 23, 2007, he was imprisoned and under
a criminal justice sentence for the state offenses, so the dis-
trict court assessed three additional criminal history points.
The Guidelines range was 46-57 months, and the court sen-
tenced Defendant to 46 months’ incarceration followed by a
three-year period of supervised release. Defendant timely
appeals. We have jurisdiction under 28 U.S.C. § 1291.
DISCUSSION
A. Related Offenses
[1] We review “with due deference” the district court’s
determination that two crimes were not related or consoli-
dated for sentencing. Buford v. United States, 532 U.S. 59,
64-66 (2001); United States v. Asberry, 394 F.3d 712, 718 n.8
(9th Cir. 2005).
[2] U.S.S.G. section 4A1.1(a) authorizes the district court
to add three points for each prior sentence of imprisonment
exceeding one year and one month. U.S.S.G. sec-
tion 4A1.2(a)(1) defines “prior sentence” as “any sentence
previously imposed upon adjudication of guilt . . . for conduct
6306 UNITED STATES v. LOMELI-MENCES
not part of the instant offense.” U.S.S.G. section 4A1.2(a)(2)
provides the rules for determining whether two offenses are
related—that is, whether they should be counted separately or
together. When Defendant was sentenced on October 1, 2007,
application note 3 to section 4A1.2 read, in relevant part:
Prior sentences are not considered related if they
were for offenses that were separated by an interven-
ing arrest (i.e., the defendant is arrested for the first
offense prior to committing the second offense).
Otherwise, prior sentences are considered related if
they resulted from offenses that (A) occurred on the
same occasion, (B) were part of a single common
scheme or plan, or (C) were consolidated for trial or
sentencing. The court should be aware that there
may be instances in which this definition is overly
broad and will result in a criminal history score that
underrepresents the seriousness of the defendant’s
criminal history and the danger that he presents to
the public.
U.S.S.G. § 4A1.2 cmt. n.3 (2006).2 Note 3 provided a two-
step approach for determining whether prior sentences are
related. Asberry, 394 F.3d at 719. First, if an intervening
arrest separated the offenses, they are unrelated and the
inquiry is over. Id. If there is no intervening arrest, offenses
are considered related if they (a) occurred on the same occa-
sion; (b) were part of a single common scheme or plan; or (c)
were consolidated for trial or sentencing. Id.No intervening arrest separated the false imprisonment and
2
A new version of U.S.S.G. section 4A1.2, effective November 1, 2007,
changed the “related cases” inquiry. Under the new version, the two prior
offenses here would be considered “related.” But we have held that this
amendment effected a substantive change to the Guidelines, which does
not apply retroactively. United States v. Marler, 527 F.3d 874, 877 n.1
(9th Cir.), cert. denied, 129 S. Ct. 427 (2008).
UNITED STATES v. LOMELI-MENCES 6307
false personation offenses. Defendant concedes that the
offenses neither occurred on the same occasion nor were part
of a common scheme or plan. He argues, however, that the
offenses were consolidated for sentencing and should, there-
fore, be treated as related offenses.
Asberry provides that in determining whether convictions
were consolidated for trial or sentencing, we must consider
whether the sentencing occurred: (1) on the same day; (2) in
the same court; (3) for the same or similar offenses; (4) pursu-
ant to a single plea agreement; (5) under the same docket
number; (6) after a formal consolidation order; and (7) under
circumstances that resulted in concurrent sentences. Id. In
Asberry, we upheld the district court’s determination that the
offenses of delivery of marijuana for consideration and third-
degree rape were not “related” for the purpose of sentencing,
even though the defendant was sentenced for both offenses in
the same court, on the same day, pursuant to the same plea
agreement. Id. at 719-20. In holding that the district court did
not err in assessing criminal history points for each offense,
we found several facts persuasive: the offenses were not simi-
lar in nature, the sentencing court used two different docket
numbers for the offenses, the sentencing court did not issue
a formal consolidation order, and the court imposed consecu-
tive sentences. Id.
[3] Similarly, here, the Asberry factors weigh in favor of
holding that the offenses were not related. The offenses were
neither factually nor temporally related. The false imprison-
ment conviction related to sexual battery of Defendant’s ex-
girlfriend in 2000, while the false personation conviction
related to presenting fraudulent identification to police six
years later. Although Defendant’s counsel hypothesized that
Defendant presented false identification to the police because
he knew that he was wanted by the authorities for battery of
his ex-girlfriend, no evidence in the record supports that
assertion. Moreover, the sentencing court treated the offenses
6308 UNITED STATES v. LOMELI-MENCES
as separate cases, as it assigned them separate docket numbers
and never issued a formal consolidation order.
[4] We recognize that the imposition of concurrent sen-
tences by the same court on the same day weighs in Defen-
dant’s favor. But the Guidelines’ ultimate goal is to find “a
sentence that accurately reflects both the seriousness of the
underlying federal offense and the extent and nature of the
defendant’s criminal past.” Asberry, 394 F.3d at 719. Treating
the 2000 and 2006 offenses as a single offense risks underre-
presenting Defendant’s serious criminal history. We are satis-
fied that the district court weighed all of the appropriate
factors and reached a conclusion that comports with Asberry.
Additionally, the district court’s conclusion must be afforded
due deference because of district judges’ “special compe-
tence” in deciding whether a particular set of circumstances
demonstrates relatedness. Buford, 532 U.S. at 64. As a result,
we affirm the district court’s determination that Defendant’s
prior convictions are unrelated and, therefore, uphold the
imposition of six criminal history points for these crimes.
B. Date of the Instant Offense
We now turn to Defendant’s second argument: that he vio-
lated 8 U.S.C. § 1326 on August 6, 2006, when immigration
authorities placed a detainer on him, rather than on April 23,
2007, the date stated in the plea agreement. On August 6,
2006, he had not yet been sentenced for the false imprison-
ment and false personation crimes. Therefore, he argues, he
could not have committed the § 1326 violation while under a
criminal justice sentence for the state offenses. Reasoning
from that premise, Defendant asserts that the district court
erred in assessing three criminal history points for committing
the offense while under another criminal justice sentence.
U.S.S.G. § 4A1.1(d), (e).
We review for clear error the district court’s factual find-
ings. United States v. Lambert, 498 F.3d 963, 966 (9th Cir.
UNITED STATES v. LOMELI-MENCES 6309
2007). This court has noted an intracircuit split on the proper
standard of review of the application of the Sentencing Guide-
lines to the facts. United States v. Rivera, 527 F.3d 891, 908
(9th Cir.), cert. denied, 129 S. Ct. 654 (2008); compare Lam-
bert, 498 F.3d at 966 (abuse of discretion standard of review),
and United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.
2005) (same), with United States v. Williamson, 439 F.3d
1125, 1137 n.12 (9th Cir. 2006) (de novo standard of review).
As in Rivera, however, our decision would be the same under
either standard of review, and we do not consider the conflict
here.
[5] A violation of § 1326 is a continuing offense that ends
when a deported alien is “found in” the United States by
immigration authorities. United States v. Hernandez, 189 F.3d
785, 789 (9th Cir. 1999); United States v. Guzman-Bruno, 27
F.3d 420, 423 (9th Cir. 1994). Here, the information charged
Defendant with committing the offense “on or about April 23,
2007.” Defendant admitted in his written plea agreement, and
orally during the change of plea proceeding, that immigration
authorities “found” him in the United States on or about April
23, 2007. Yet, despite those admissions, Defendant urges us
to find that he was found in the country on a much earlier
date, August 6, 2006, because that was when immigration
officials placed a detainer on him.
[6] We have not yet addressed the binding force of a date
admitted to in a plea agreement for a § 1326 offense, but our
sister circuits have. This is a question of law, which we
review de novo. In United States v. Coeur, 196 F.3d 1344(11th Cir. 1999) (per curiam), the Eleventh Circuit faced a
factual situation very similar to ours. The defendant there
argued, as here, that “the district court improperly increased
his criminal history points under U.S.S.G. § 4A1.1(d) after
concluding that he committed the § 1326(a) crime while serv-
ing another sentence.” Coeur, 196 F.3d at 1345. The defen-
dant disputed that he was “found in” the United States on the
date to which he had agreed in his plea agreement. Id. at
6310 UNITED STATES v. LOMELI-MENCES
1346; see also United States v. Rosales-Garay, 283 F.3d
1200, 1203 (10th Cir. 2002) (adopting Coeur’s rule). The
Eleventh Circuit held, relying on its own precedent, that
“when a defendant enters a plea of guilty to being ‘found in’
the United States on a certain date, the issue of when the
offense was committed is settled, and the defendant may not
later dispute that date.” Id. at 1346. The Second Circuit
applied a similar rule in United States v. Whittaker, 999 F.2d
38 (2d Cir. 1993). There, the court held that the defendant’s
guilty plea to an information alleging that the defendant
entered and was found in the United States “between October
1991 and April 8, 1992,” established April 8, 1992, as the
operative offense conclusion date. Id. at 41.
[7] We agree with our sister circuits. A guilty plea and the
“ensuing conviction comprehend all of the factual and legal
elements necessary to sustain a binding, final judgment of
guilt and a lawful sentence.” United States v. Broce, 488 U.S.
563, 569 (1989) (emphasis added). When a defendant admits,
in an enforceable plea agreement for a violation of 8 U.S.C.
§ 1326, to having been found in the United States on a spe-
cific date, that admission is binding as to the offense date, and
the defendant may not later dispute its validity.
[8] In summary, having admitted to the April 23, 2007, date
in both his written plea agreement and oral change of plea
proceedings, Defendant cannot now argue that he was “found
in” the United States on a different date. Defendant did not
challenge the April 23, 2007, date at the plea agreement stage;
by signing the plea agreement, he waived his objections and
became bound by the facts recited therein.3 As of that date, he
3
Defendant raised a second challenge to the April 23, 2007, date at oral
argument, asserting that the phrase “on or about” is imprecise and could
have meant a much earlier date. Defendant waived this argument by men-
tioning it for the first time at oral argument. Butler v. Curry, 528 F.3d 624,
642 (9th Cir.), cert. denied, 129 S. Ct. 767 (2008). In any case, the argu-
ment is not well-taken. Cf. United States v. Casterline, 103 F.3d 76, 78
(9th Cir. 1996) (holding that a date seven months earlier than the date
alleged in the indictment was too remote to be considered “on or about”
that date).
UNITED STATES v. LOMELI-MENCES 6311
was under a criminal justice sentence for the 2006 offenses,
so the three-point increase under U.S.S.G. section 4A1.2(d)
and (e) was warranted. The matter is remanded to the district
court with instructions to correct the judgment of conviction
to exclude the reference to 8 U.S.C. § 1326(b)(2). See United
States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000)
(holding that, when a defendant is “indicted, convicted and
sentenced for one crime, in a single count, and not in separate
counts pursuant to § 1326(a) and § 1326(b)(2),” but the judg-
ment references both subsections, the matter should be
remanded to correct the judgment to exclude the reference to
§ 1326(b)(2)).
AFFIRMED and REMANDED.