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United States v. Franco-Flores

March 9, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
NICOLAS FRANCO-FLORES, AKA LRH NICO, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding D.C. No. 3:06-CR-00144.

The opinion of the court was delivered by: D.W. Nelson, Senior Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted February 11, 2009 -- Stanford, California

Before: Dorothy W. Nelson, William A. Fletcher and Richard C. Tallman, Circuit Judges.

Appellant Nicholas Franco-Flores appeals the district court's assessment of prior convictions in calculating his criminal history category.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court's ruling.

FACTUAL AND PROCEDURAL BACKGROUND

On September 26, 2006, the grand jury for the U.S. District Court for the District of Nevada returned an indictment charging Nicolas Franco-Flores with two counts of being an Illegal Alien in Possession of a Firearm, 18 U.S.C. §§ 922(g)(5), 924(a)(2) ("Counts 1 and 2"), two counts of Distribution of a Controlled Substance - Methamphetamine, 21 U.S.C. § 841(a)(1) ("Counts 3 and 4"), and one count seeking forfeiture of arms, 18 U.S.C. §§ 922(g)(1), 924(d) ("Count 5"). Pursuant to a plea agreement, Franco-Flores entered a plea of guilty to Counts 1 and 4. Counts 2 and 3 were dismissed and the firearms were forfeited.

According to the presentence report ("PSR"), in February 2003, prior to his federal charges, Franco-Flores pleaded guilty to a charge of Possession of a Controlled Substance in the Second Judicial District Court of Washoe County, Reno, Nevada (the "state court offense"), and was remanded to state drug court. The state court judge informed Franco-Flores that if he completed the state drug court program, the felony would be "wiped off . . . [his] record," but that if he did not, he would be required to return to the state court for sentencing. Under the terms of the state drug court program, Franco-Flores was monitored by, and required to make appearances at, the drug court. When he did not complete the state drug program, the state court issued a bench warrant for his arrest in July 2003.

Pursuant to the United States Sentencing Guidelines Manual ("U.S. Sentencing Guidelines") sections 4A1.1(c) and 4A1.2(a)(4), the PSR added two criminal history points for the state court offense. The PSR also added two criminal history points for the state court offense under U.S. Sentencing Guidelines section 4A1.1(d). The two additional history points raised Franco-Flores' criminal history score from one to three and his criminal history category from I to II. The criminal history category, when combined with Franco- Flores's offense level of 30, and taking into account the ten-year statutory minimum sentence, yielded an advisory sentence of 120-135 months' imprisonment. It also rendered him ineligible for a "safety-valve" reduction below the statutory minimum.

At the time of sentencing, Franco-Flores objected to the additional two points under U.S. Sentencing Guidelines section 4A1.1(d). The district court rejected this argument, and sentenced Franco-Flores to 120 months' imprisonment. The district court entered judgment on February 21, 2008, and Franco-Flores timely appealed.

STANDARD OF REVIEW

This court reviews the "district court's interpretation of the Sentencing Guidelines de novo, the district court's application of the Sentencing Guidelines to the facts of [a] case for abuse of discretion, and the district court's factual findings for clear error." United States v. Alvarez-Hernandez, 478 F.3d 1060, 1063 (9th Cir. 2007) (quoting United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006)) (alteration in original). The district court's assessment of prior convictions in ...


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