United States v. Esequiel Orcino

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 4 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50229
Plaintiff-Appellee, D.C. No.
2:15-cr-00020-PA-1
v.
ESEQUIEL DE JESUS GONZALEZ MEMORANDUM *
ORCINO,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted October 2, 2017 **
Pasadena, California
Before: M. SMITH and NGUYEN, Circuit Judges, and SETTLE, District
Judge.***
Esequiel de Jesus Gonzalez Orcino appeals his sentence following his guilty
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Benjamin H. Settle, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.
plea to unlawful reentry under 8 U.S.C. § 1326(a). Specifically, he argues that the
district court failed to properly calculate his criminal history points, thereby
placing him in criminal history category IV instead of III. Because Gonzalez
Orcino failed to preserve any of his arguments below, we review for plain error.
See United States v. Guzman-Mata, 579 F.3d 1065, 1068 (9th Cir. 2009).
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. The district court properly assessed Gonzalez Orcino two criminal history
points for committing the instant offense while on parole. See U.S.S.G. §
4A1.1(d). Although a § 1326 violation is considered a “continuing offense[,] . . .
the offense commences with the illegal entry.” United States v. Reyes-Pacheco,
248 F.3d 942, 946 (9th Cir. 2001) (internal citations omitted). Gonzalez Orcino
admitted to reentering the country without permission in February 2007 when he
was on parole. Contrary to his arguments on appeal, the February 2007
commission date has been reliably shown since Gonzalez Orcino admitted to this
date at sentencing.
2. The district court also properly assessed one criminal history point for
Gonzalez Orcino’s 2003 conviction for violating California Penal Code § 422
because it occurred “within ten years of the defendant’s commencement of the
instant [illegal reentry] offense” in February 2007. U.S.S.G. § 4A1.2(e)(2)
(emphasis added).
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3. The district court properly assessed one point for Gonzalez Orcino’s 2014
drug possession offense. Gonzalez Orcino pled guilty to violating California
Health and Safety Code § 11377 and was offered a drug diversion program. The
record reflects that he failed to appear at a subsequent hearing but does not show
that he was ever sentenced for this crime. The Sentencing Guidelines, however, do
not require the imposition of a sentence for this offense to be counted under section
4A1.1(c). U.S.S.G. § 4A1.2(a)(4). Moreover, even if he had successfully
completed the diversion program, a “diversionary disposition resulting from a
finding or admission of guilt . . . in a judicial proceeding” may also be considered
under the Guidelines. U.S.S.G. § 4A1.2(f).
AFFIRMED.
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