United States v. Juventino Gonzalez , 739 F.3d 420 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50160
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-01190-DSF-1
JUVENTINO IBARRA GONZALEZ,
Defendant-Appellant. ORDER AND
OPINION
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted July 11, 2013*
Pasadena, California
Filed September 10, 2013
Before: Susan P. Graber, Johnnie B. Rawlinson,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Graber
*
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. GONZALEZ
SUMMARY**
Criminal Law
The panel redesignated a memorandum disposition as an
opinion, with modifications, in a case in which a defendant
convicted of illegal reentry argued that the district court erred
at sentencing when calculating his criminal history score.
The panel rejected the defendant’s contention that the
district court should have treated two prior sentences as a
single sentence under U.S.S.G. § 4A1.2(a), rather than as two
separate sentences, where the two sentencing hearings were
originally scheduled for the same day and would have taken
place on the same day if not for the fact that the proceedings
were set at different courthouses. The panel declined to read
an equitable exception into the guideline’s plain text.
The panel rejected the defendant’s contention that the
district court erred by assessing points under U.S.S.G.
§ 4A1.1(d) on the ground that he was on parole when he
committed the present offense. The panel observed that the
record contains no evidence that the defendant’s parole was
discharged automatically as a matter of state law or in fact.
The panel saw no reason why a term of unsupervised parole
would not qualify as a “criminal justice sentence” under
§ 4A1.1(d).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GONZALEZ 3
COUNSEL
Matthew B. Larsen, Deputy Federal Public Defender, and
Sean K. Kennedy, Federal Public Defender, Los Angeles,
California, for Defendant-Appellant.
James M. Left, Special Assistant United States Attorney,
André Birotte Jr., United States Attorney, and Robert E.
Dugdale, Assistant United States Attorney, Los Angeles,
California, for Plaintiff-Appellee.
ORDER
Appellee’s request to publish the unpublished
Memorandum disposition is GRANTED. The Memorandum
disposition filed July 15, 2013, is redesignated as an authored
opinion by Judge Graber, with modifications. The time for
filing a petition for rehearing and petition for rehearing en
banc shall start anew as of the filed date of this opinion.
OPINION
GRABER, Circuit Judge:
Defendant Juventino Ibarra Gonzalez appeals from the
district court’s judgment sentencing him to a term of 51
months in prison after he pleaded guilty to having reentered
the United States illegally after removal, in violation of
8 U.S.C. § 1326. He argues that the sentencing court erred in
two ways when calculating his criminal history score. First,
he argues that the court should have treated two prior
4 UNITED STATES V. GONZALEZ
sentences as a single sentence under U.S.S.G. § 4A1.2(a),
rather than as two separate sentences. Second, Defendant
asserts that the district court erred by assessing additional
points under U.S.S.G. § 4A1.1(d) because there was
insufficient proof that he was on parole when he committed
the present offense. Neither argument persuades us.1
Accordingly, we affirm.
A. U.S.S.G. § 4A1.2(a).
Section 4A1.2(a)(2) of the Sentencing Guidelines
provides that prior sentences must be “counted separately
unless (A) the sentences resulted from offenses contained in
the same charging instrument; or (B) the sentences were
imposed on the same day.” Here, Defendant’s prior
sentences facially fail to meet either criterion for the
exception to separate counting to apply. He was sentenced
for possession for sale of marijuana on May 23, 2008; that
crime occurred on February 26, 2008. On June 3, 2008,
Defendant was sentenced for a burglary that he committed on
March 20, 2006. The two offenses were charged in two
separate instruments. Thus, the crimes took place two years
apart, the crimes were charged separately, and the two
sentences were imposed on different days.
The district court applied the Guideline as written. The
court treated the two prior sentences as separate and,
1
We review de novo the district court’s interpretation of the Sentencing
Guidelines, such as its inclusion of a prior conviction in the calculation of
the criminal history score. United States v. Lichtenberg, 631 F.3d 1021,
1024 (9th Cir. 2011). We review for clear error the district court’s factual
findings during sentencing. United States v. Schafer, 625 F.3d 629, 639
(9th Cir. 2010).
UNITED STATES V. GONZALEZ 5
accordingly, applied two three-point increases to Defendant’s
criminal history. See U.S.S.G. § 4A1.1(a) (“Add 3 points for
each prior sentence of imprisonment exceeding one year and
one month.”).
Defendant argues, though, that the district court should
have treated the two prior sentences as one because the two
sentencing hearings originally were scheduled for the same
day and would have taken place on the same day if not for the
fact that the proceedings were set at two different
courthouses. He contends that it is arbitrary to give effect to
a mere accident of geography; to do so “contravenes the
Guidelines’ goal of eliminating sentencing disparity based on
trivialities such as geography to impose harsher punishment
on defendants previously sentenced by courts in large rather
than small counties.” We disagree.
Section 4A1.2(a) contains a clear, straightforward, easily
applied rule for counting prior convictions. We will not read
into that section’s plain text the equitable exception that
Defendant desires. The drafters of the Guidelines were aware
of the fact-intensive inquiries that had taken place under an
earlier version of this section. And they knew that, by
requiring the sentences to be imposed on the same day, the
Guideline would treat differently situations that might seem
equitably similar (one defendant sentenced at 9 a.m. and
4 p.m. on the same day would have one sentence counted,
while another sentenced for the same crimes at 4 p.m. on one
day and 9 a.m. on the next day would have two sentences
counted). But the drafters chose a bright line, and we will
respect it. In so holding, we join our sister circuits. See, e.g.,
United States v. Jones, 698 F.3d 1048, 1050–51 (8th Cir.
2012) (rejecting an argument for treating sentences as one
because the offenses were inextricably intertwined, refusing
6 UNITED STATES V. GONZALEZ
to “ignore the clear instruction from section 4A1.2(a)(2)”);
United States v. Graves, 418 F.3d 739, 745 (7th Cir. 2005)
(treating sentences as separate although they were concurrent
and one plea agreement referred to another, because the literal
terms of the Guideline were not met); United States v. Roche-
Moreno, 331 F. App’x 110, 112 (3d Cir. 2009) (unpublished)
(rejecting an argument for treating sentences actually
imposed on different days as one, even though the sentences
should have been imposed on the same day, because to do so
would “directly contravene the purpose” of the Guidelines).2
B. U.S.S.G. § 4A1.1(d).
The district court also assessed two criminal history
points because Defendant committed the present offense
while on parole. Section 4A1.1(d) provides for a two-point
enhancement for committing an “offense while under any
criminal justice sentence, including . . . parole.”
Defendant does not dispute that he was placed on parole
when he was released from prison on March 31, 2011, for the
burglary offense. Instead, he argues that, as a matter of state
law, his parole terminated automatically once he was
deported from the United States on April 20, 2011. But the
California Department of Corrections and Rehabilitation
policy memorandum that Defendant cites in support of his
argument states only that a parolee who has been deported
may be discharged following certain procedural steps. The
memorandum does not provide for an automatic discharge
from parole. The record contains no evidence that the
2
Unpublished opinions from the Third Circuit are not binding on that
court but may be cited as persuasive authority. United States v. Kluger,
No. 12-2701, 2013 WL 3481505, at *22 n.18 (3d Cir. July 9, 2013).
UNITED STATES V. GONZALEZ 7
relevant steps were taken here or that Defendant was in fact
discharged from parole.
To the contrary, the presentence report discloses that
Defendant was on non-revocable parole until April 1, 2012,
under California Penal Code section 3000.03. Defendant
illegally returned to the United States on May 13, 2011.
Thus, the district court did not clearly err when it found that
Defendant was on parole at the time he violated 8 U.S.C.
§ 1326.
In the alternative, Defendant contends that, if he was on
non-revocable parole at the relevant time, that form of parole
does not meet the requirements of a “criminal justice
sentence” under U.S.S.G. § 4A1.1(d) because it is
unsupervised. The application notes for that provision state
that “a ‘criminal justice sentence’ means a sentence . . .
having a custodial or supervisory component, although active
supervision is not required for this subsection to apply.”
U.S.S.G. § 4A1.1(d) cmt. n.4. As Defendant acknowledges,
a person on non-revocable parole is subject at least to
warrantless searches by the police. That condition alone
satisfies the requirement that the criminal justice sentence at
issue have a “supervisory component.” Id. Moreover, the
application notes state that even a “term of unsupervised
probation” would fall within the definition of “criminal
justice sentence.” Id. We see no reason, in the structure or
purposes of the Guidelines, why a term of unsupervised
parole would not similarly qualify as a “criminal justice
sentence.”
AFFIRMED.