United States v. William Rosales

FILED
NOT FOR PUBLICATION SEP 16 2010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. 09-50501
Plaintiff - Appellee, D.C. No. 2:09-cr-00394-AHM-1
v.
MEMORANDUM *
WILLIAM HERRERA ROSALES, AKA
Joel Diaz, AKA William Herrera Obel,
AKA Jose Moyen, AKA William Herrera
Orvil, AKA Antonio Murillo Rico, AKA
Jose Reyes Meyen,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Submitted September 1, 2010 **
Pasadena, California
Before: O’SCANNLAIN, FISHER and GOULD, Circuit Judges.
William Herrera Rosales (Herrera) appeals the district court’s 46-month
sentence, arguing that the court clearly erred in adding two criminal history points
*
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).
based on the finding that he illegally reentered the United States before October 25,
2008, the date that his state parole term expired. We affirm.
On March 18, 2009, Herrera signed an I-871 immigration form
acknowledging that he illegally reentered the country “on or about October 1,
2008.” Although Herrera now argues that his signature confirmed only that he did
not wish to contest the determination that he was removable, the district court
could reasonably have found that Herrera’s signature affirmed the facts set forth in
the document on which that determination was based. Also on March 18, Herrera
told immigration officials that he reentered the country “[a]bout 6 months ago,
October 2008.” Six months prior to March 18 would have been September 18,
2008. Although Herrera argues this statement was only an approximation, the
district court could reasonably have relied on it as evidence that Herrera reentered
in early October.
Given this evidence, the district court did not clearly err in finding by a
preponderance of the evidence that Herrera reentered the country prior to October
25, 2008. See United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).
Herrera’s request for judicial notice, filed March 18, 2010, is granted.
AFFIRMED.
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