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United States v. Gonzalez

United States Court of Appeals, Ninth Circuit

September 10, 2013

UNITED STATES of America, Plaintiff-Appellee,
v.
Juventino Ibarra GONZALEZ, Defendant-Appellant.

Submitted July 11, 2013.[*]

Page 421

Matthew B. Larsen, Deputy Federal Public Defender, and Sean K. Kennedy, Federal Public Defender, Los Angeles, CA, for Defendant-Appellant.

James M. Left, Special Assistant United States Attorney, André Birotte Jr., United States Attorney, and Robert E. Dugdale, Assistant United States Attorney, Los Angeles, CA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Central District of California, Dale S. Fischer, District Judge, Presiding. D.C. No. 2:11-cr-01190-DSF-1.

Before: SUSAN P. GRABER, JOHNNIE B. RAWLINSON, and PAUL J. WATFORD, Circuit Judges.

ORDER

Appellee's request to publish the unpublished Memorandum disposition is

Page 422

GRANTED. The Memorandum disposition filed July 15, 2013, is redesignated as an authored opinion by Judge Graber, with modifications. The time for filing a petition for rehearing and petition for rehearing en banc shall start anew as of the filed date of this opinion.

OPINION

GRABER, Circuit Judge:

Defendant Juventino Ibarra Gonzalez appeals from the district court's judgment sentencing him to a term of 51 months in prison after he pleaded guilty to having reentered the United States illegally after removal, in violation of 8 U.S.C. § 1326. He argues that the sentencing court erred in two ways when calculating his criminal history score. First, he argues that the court should have treated two prior sentences as a single sentence under U.S.S.G. § 4A1.2(a), rather than as two separate sentences. Second, Defendant asserts that the district court erred by assessing additional points under U.S.S.G. § 4A1.1(d) because there was insufficient proof that he was on parole when he committed the present offense. Neither argument persuades us.[1] Accordingly, we affirm.

A. U.S.S.G. § 4A1.2(a) .

Section 4A1.2(a)(2) of the Sentencing Guidelines provides that prior sentences must be " counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day." Here, Defendant's prior sentences facially fail to meet either criterion for the exception to separate counting to apply. He was sentenced for possession for sale of marijuana on May 23, 2008; that crime occurred on February 26, 2008. On June 3, 2008, Defendant was sentenced for a burglary that he committed on March 20, 2006. The two offenses were charged in two ...


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