United States v. Jimmy Salcedo ( 2010 )

FILED
NOT FOR PUBLICATION JUL 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10240
Plaintiff - Appellee, D.C. No. 2:08-cr-00242-EJG-1
v.
MEMORANDUM*
JIMMY SALCEDO, a.k.a. Jimmy Sanchez
Salcedo, a/k/a Jimmy Salcedo Salinas,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, District Judge, Presiding
Argued and Submitted June 14, 2010
San Francisco, California
Before: O’SCANNLAIN, TASHIMA, BEA, Circuit Judges.
Jimmy Salcedo appeals the calculation of his sentence following his guilty
plea, without a plea agreement, to illegal reentry of a previously deported alien, a
violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review de novo a district court’s determination that a prior conviction
may be used in calculating a defendant’s criminal history score. United States v.
Allen, 153 F.3d 1037, 1041 (9th Cir. 1998). If the district court incorrectly
calculates the advisory Sentencing Guidelines’ range, it is an error of law even
though those Guidelines are advisory. United States v. Carty, 520 F3.3d 984, 991,
993 (9th Cir. 2008) (en banc).
In reviewing a lower court’s factual findings, we:
determine whether the trial court’s application of the correct legal standard
[to the facts] was (1) “illogical,” (2) “implausible,” or (3) without “support
in inferences that may be drawn from the facts in the record.” If any of these
three apply, only then are we able to have a “definite and firm conviction”
that the district court reached a conclusion that was a “mistake” or was not
among its “permissible” options, and thus that it abused its discretion by
making a clearly erroneous finding of fact.
United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc) (citation
omitted).
Salcedo pleaded guilty to the indictment, which charged that he was found
by immigration officers in the Sacramento County jail on March 10, 2008, where
he was serving a jail sentence for the state conviction of assault with a deadly
weapon with likelihood of great bodily injury. Salcedo has a lengthy history of
felony convictions for violent crimes.
2
He disputes the pre-sentence report’s assessment of three criminal history
category points for one of those crimes—a 1998 felony conviction for inflicting
corporal injury on a spouse or cohabitant. The district court correctly interpreted
the 1998 documents of conviction, which explicitly state that Salcedo’s sentence
was for a “TOTAL TERM 459 Days CJ [county jail].” The record further shows
that Salcedo agreed to a sentence of up to 16 months in state prison, which was
suspended so that he could receive his 459-day jail sentence and a grant of
probation. See United States v. Buzo-Zepeda, No. 09-50190, 2010 WL 2541256,
*2–*3 (9th Cir. June 25, 2010) (construing California’s waiver provision set forth
in People v. Johnson, 147 Cal. Rptr. 55 (Cal. Ct. App. 1978), and holding the
state’s characterization of the sentence does not affect the Guidelines’ calculation).
Salcedo also challenges the pre-sentence report’s assessment of two criminal
history category points because he was discovered in the United States while he
was serving a sentence of imprisonment for another crime. The date Salcedo was
found by the immigration authorities is relevant because illegal reentry under 8
U.S.C. § 1326 is considered a continuing offense that is completed only upon “the
alien’s discovery by the immigration authorities.” United States v. Hernandez, 189
F.3d 785, 790 (9th Cir. 1999).
3
Salcedo contends the date the immigration authorities said they had found
him, March 10, 2008, was incorrect, and he had actually been found by
immigration authorities on October 23, 2007, six days before he was sentenced in
the state case. The district court did not abuse its discretion in finding that the
immigration authorities did not discover Salcedo until March 10, 2008. The record
shows that the indictment to which Salcedo pleaded guilty charged “the defendant
was found in the United States on March 10, 2008.” Although Salcedo claims a
probation officer sent the immigration authorities notice of his presence on October
23, 2007, there is no evidence in the record that the immigration authorities
actually received such notice.
Next, Salcedo contends the government’s decision not to offer him a
“fast-track” disposition, where the government would move for a four-level
reduction in his offense level pursuant to U.S.S.G. § 5K3.1, created an unwarranted
sentencing disparity between his sentence and the sentences of other defendants
who are given this downward departure. We have already rejected this argument.
United States v. Gonzalez-Zotelo, 556 F.3d 736, 741 (9th Cir. 2009).
Finally, Salcedo’s sentence is both procedurally and substantively
reasonable. The district court considered and correctly applied all the relevant
sentencing factors in 18 U.S.C. § 3553(a), which Salcedo does not challenge.
4
The district court imposed a 77-month sentence, which is at the bottom of
the applicable Sentencing Guidelines range. Considering Salcedo’s lengthy
criminal history, the sentence is quite lenient. Unlike the defendant in United
States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), Salcedo’s most serious
convictions are recent. He was last convicted in 2007 of assault with a deadly
weapon likely to cause great bodily injury, a crime of violence. He also has three
other convictions for domestic violence within the last fifteen years. After being
deported multiple times, Salcedo continues to return to the United States to commit
more crimes of violence.
AFFIRMED.
5