United States v. Antonio Cea-Rodriguez , 385 F. App'x 653 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50471
Plaintiff - Appellee, D.C. No. 5:08-cr-00106-VAP
v.
MEMORANDUM *
ANTONIO FREDY CEA-RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Antonio Fredy Cea-Rodriguez appeals from the 37-month sentence imposed
following his guilty-plea conviction for being an illegal alien found in the United
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. §
1291. We affirm, but remand to correct the judgment.
Cea-Rodriguez contends that the district court erred by considering his
conviction for violating California Penal Code § 245(a)(1) to be a categorical crime
of violence under U.S.S.G. § 2L1.2. The valid appeal waiver precludes our review
of this contention. See United States v. Bibler, 495 F.3d 621, 623-24 (9th Cir.
2007).
Cea-Rodriguez contends that the district court erred by considering his
January 2008 conviction to be a “prior sentence” for purposes of calculating his
criminal history under the Sentencing Guidelines. This contention is foreclosed by
United States v. Cruz-Gramajo, 570 F.3d 1162, 1167-74 (9th Cir. 2009).
Cea-Rodriguez also contends that the district court erred by assigning him
criminal history points under U.S.S.G. § 4A1.1(d) and (e) for committing part of
the offense while under a criminal justice sentence and while in imprisonment. He
argues that his section 1326 offense was complete when he was arrested by local
authorities, which was before he was convicted of the new state offenses and
imprisoned for them. Cea-Rodriguez is incorrect. His section 1326 offense was
not complete until immigration officials found him. See United States v.
Hernandez, 189 F.3d 785, 791 (9th Cir. 1999) (recognizing that for purposes of the
2 08-50471
Sentencing Guidelines, the “offense of being found in the United States ends when
an alien is discovered and identified by the immigration authorities”). Cea-
Rodriguez also is incorrect when he asserts that, because he could not leave the
country while imprisoned, he was not continuing to violate section 1326 while he
was imprisoned by local authorities for the new state offenses. See United States v.
Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir. 1995) (“We also reject Ortiz-Villegas’
argument that he did not have the required intent to be ‘found in’ the United States
because he was involuntarily incarcerated within United States’ borders at the time
he was located.”). Cea-Rodriguez’ “inability to depart this country was of his own
making.” See id. at 1437 n.2.
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062
(9th Cir. 2000), we remand the case to the district court with instructions that it
delete from the judgment the incorrect reference to section 1326(b). See United
States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte
to delete the reference to section 1326(b)). On remand, the court also shall correct
the judgment to reflect that Cea-Rodriguez was convicted of being an illegal alien
found in the United States after deportation, not for illegal re-entry.
AFFIRMED; REMANDED to correct judgment.
3 08-50471