United States v. Gerardo Gonzalez-Torres

FILED
NOT FOR PUBLICATION
JAN 14 2015
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10269
Plaintiff-Appellee, D.C. No. 2:12-cr-10490-PHX-
ROS
v.
GERARDO GONZALEZ-TORRES, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted December 9, 2014
San Francisco, California
Before: PAEZ and TASHIMA, Circuit Judges, and QUIST, Senior District Judge.**
Appellant Gerardo Gonzalez-Torres appeals his 63-month sentence for
illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). His United
States Sentencing Guidelines calculation included a 16-level enhancement based
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
on prior convictions for putative crimes of violence, pursuant to Guideline §
2L1.2(b)(1)(A). The question presented is whether the district court erred in
imposing the enhancement because the crimes for which Gonzalez-Torres had been
convicted do not constitute crimes of violence under § 2L1.2(b)(1)(A) and because
he had been denied the assistance of an interpreter during the proceedings related
to those convictions. Gonzalez-Torres further argues that the district court erred in
calculating the criminal history points for his prior convictions.
We review a district court’s interpretation of the Sentencing Guidelines de
novo. See United States v. Soberanes, 318 F.3d 959, 961 (9th Cir. 2003). Where
a defendant does not object to the district court’s sentencing procedure, we review
alleged procedural errors for plain error. See United States v. Blinkinsop, 606 F.3d
1110, 1114 (9th Cir. 2010).
Because the parties are familiar with the facts, we recite them only as
necessary to illuminate our disposition. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
1. Gonzalez-Torres was previously convicted of committing two
separate felonies in North Carolina: assault with a deadly weapon inflicting serious
injury, N.C. Gen. Stat. § 14-32(b), and discharge of a weapon or firearm into
occupied property, N.C. Gen. Stat. § 14-34.1. Gonzalez-Torres argues that those
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convictions do not constitute crimes of violence, and that the district court thus
erred in imposing the 16-level enhancement. Gonzalez-Torres did not object or
call into question the conclusion that he had been convicted of a crime of violence.
Therefore, his claim is subject to the plain error standard of review. See Untied
States v. Gonzalez-Aparicio, 663 F.3d 419, 426-27 (9th Cir. 2011).
To satisfy the plain error standard, Gonzalez-Torres must demonstrate that
there is “(1) error that is (2) plain, (3) affects substantial rights, and (4) seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Cruz, 554 F.3d 840, 845 (9th Cir. 2009) (internal quotation marks
omitted). Plain error is “error that is so clear-cut, so obvious, a competent district
judge should be able to avoid it without benefit of objection.” Gonzalez-Aparicio,
663 F.3d at 428 (internal quotation marks omitted). Gonzalez-Torres does not
demonstrate that the district court’s conclusion that he had been convicted of a
crime of violence constituted error that was clear-cut or obvious. Accordingly, this
argument fails.
2. Gonzalez-Torres next attempts to collaterally attack his North
Carolina convictions. Although the record of the relevant proceedings
demonstrates that Gonzalez-Torres was provided with an interpreter, Gonzalez-
Torres argues that the record does not prove that he could understand his
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interpreter or that the interpreter aided in communications with his attorney.
“[T]he Constitution requires only that collateral attacks in illegal re-entry after
deportation proceedings be allowed on convictions obtained in violation of the
right to counsel.” United States v. Gutierrez-Cervantez, 132 F.3d 460, 462 (9th
Cir. 1997). Gonzalez-Torres was provided with an attorney that he admits was
competent, and he was provided with an interpreter. Gonzalez-Torres does not
identify any specific inaccuracy of interpretation or reason to doubt whether he
could communicate with counsel. On this record, he has not demonstrated that his
convictions were obtained in violation of the right to counsel.
3. Finally, Gonzalez-Torres argues that the district court erred in
calculating the criminal history points for his North Carolina convictions. The
district court properly assessed three criminal history points for Gonzalez-Torres’s
first felony conviction, and one additional point for each of the three additional
convictions. See U.S.S.G. § 4A1.1(a),(c). Accordingly, there was no error.
AFFIRMED.
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