United States v. Jesus Trevino

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1444
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Jesus Trevino, also known as *
Adalid Montiel-Figueroa, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: December 16, 2009
Filed: December 21, 2009
___________
Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Jesus Trevino, proceeding pro se, challenges the below-Guidelines-range
sentence the district court1 imposed after he pled guilty to reentering the United States
in April 2008 after deportation, without authority to do so, in violation of 8 U.S.C. §
1326(a) and (b)(2). On appeal, Trevino contends (1) that the court erred in using a
September 1993 California conviction to increase his base offense level and to assess
criminal history points because the conviction is unrelated to his current offense and
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
is “too old;” and (2) that the court violated Fed. R. Crim. P. 32 and his due process
rights at the sentencing hearing by failing to make proper findings on the disputed
portions of the presentence report (PSR), and by accepting the probation officer’s
testimony which he claims was based on “materially false or unreliable information.”
We find that the district court committed no error in sentencing Trevino. See
United States v. Borer, 412 F.3d 987, 991-92 (8th Cir. 2005) (standard of review).
First, there is no merit to Trevino’s arguments regarding the California conviction.
See U.S.S.G. §§ 2L1.2(b)(1)(A) (increase 16 levels if defendant was previously
deported after conviction for felony that was drug trafficking offense for which
sentence imposed exceeded 13 months); 4A1.1(a) (add 3 points for each prior
sentence of imprisonment exceeding one year and one month); 4A1.2(e)(1) (“Any
prior sentence of imprisonment exceeding one year and one month that was imposed
within fifteen years of the defendant’s commencement of the instant offense is
counted”). Second, there is no merit to Trevino’s arguments related to the sentencing
hearing. See West v. United States, 994 F.2d 510, 512 (8th Cir. 1993) (court did not
violate Rule 32 when it made specific findings of fact on record; defendant not denied
due process so long as he “was afforded an adequate opportunity to challenge the
information” through objections to PSR).
The judgment is affirmed.
______________________________
-2-