United States v. Juventino Gonzalez

FILED
NOT FOR PUBLICATION JUL 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50160
Plaintiff - Appellee, D.C. No. 2:11-cr-01190-DSF-1
v.
MEMORANDUM*
JUVENTINO IBARRA GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted July 11, 2013**
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Juventino Ibarra Gonzalez appeals from the district court’s judgment
sentencing him to 51 months in prison after he pleaded guilty to being an illegal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
alien who was removed from, and subsequently found in, the United States in
violation of 8 U.S.C. § 1326. He argues that the court made two errors with
respect to the calculation of his criminal history, first by failing to treat two prior
sentences as a single sentence under U.S.S.G. § 4A1.2(a), and second by assessing
additional points under U.S.S.G. § 4A1.1(d) for committing his § 1326 offense
while he was on parole.
The district court did not err in treating Gonzalez’s two prior sentences as
separate sentences and accordingly applying two three-point increases to his
criminal history. Under U.S.S.G. § 4A1.2(a), prior sentences should be counted
separately when there is no intervening arrest unless “(A) the sentences resulted
from offenses contained in the same charging instrument; or (B) the sentences were
imposed on the same day.” Gonzalez was sentenced for a marijuana possession
offense on May 23, 2008, and for a burglary offense on June 3, 2008, and the two
offenses were charged in different charging instruments. Thus, he does not fall
within the plain terms of the Guidelines provision. Gonzalez nonetheless contends
that it would be arbitrary not to treat the two sentences as one because the hearings
were originally scheduled for the same day and would have taken place on the
same day if not for the fact that they were scheduled to be held in different
courthouses. Given, however, that the two sentences were for completely
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unrelated offenses, which took place nearly two years apart, we do not think
U.S.S.G. § 4A1.2(a) was intended to encompass Gonzalez’s situation, and the
district court was therefore correct to apply the provision as written.
The district court also did not err by assessing two criminal history points
for committing the present offense while on parole. Gonzalez does not dispute that
he was placed on parole when he was released from prison for the burglary offense
on March 31, 2011. Instead, he argues that his parole automatically terminated as
a matter of state law once he was deported from the United States on April 20,
2011. However, the California Department of Corrections and Rehabilitation
(CDCR) policy memorandum that Gonzalez cites in support of that argument states
only that a parolee who has been deported may be discharged following certain
procedures (as opposed to automatically), and Gonzalez provides no evidence that
he himself was ever so discharged. Moreover, the probation officer who prepared
Gonzalez’s presentence report learned from an inquiry to CDCR that Gonzalez was
on non-revocable parole until April 1, 2012, under California Penal Code section
3000.03. Thus, the district court correctly concluded that Gonzalez was on parole
at the time he violated § 1326.
Gonzalez further contends that, if he was in fact on non-revocable parole at
the relevant time, that form of parole does not meet the requirements of a “criminal
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justice sentence” under U.S.S.G. § 4A1.1(d). The application notes for that
provision state that “a ‘criminal justice sentence’ means a sentence . . . having a
custodial or supervisory component, although active supervision is not required for
this subsection to apply.” U.S.S.G. § 4A1.1(d) cmt. n.4. Gonzalez does not
dispute that a person on non-revocable parole is subject at least to warrantless
searches by the police. As the district court correctly concluded, that condition
alone satisfies the requirement that the criminal justice sentence at issue have a
supervisory component. See id. (noting that a “term of unsupervised probation”
would fall within the definition of criminal justice sentence).
AFFIRMED.
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