United States v. Adan Guerrero-Flores , 363 F. App'x 525 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 29 2010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. 08-50520
Plaintiff - Appellee, D.C. No. 3:08-cr-00718-W-1
v.
MEMORANDUM *
ADAN GUERRERO-FLORES,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 08-50581
Plaintiff - Appellant, D.C. No. 3:08-cr-00718-W-1
v.
ADAN GUERRERO-FLORES,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted January 15, 2010
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOODWIN, SCHROEDER and FISHER, Circuit Judges.
Adan Guerrero-Flores appeals from his 27-month sentence, which the
district court imposed after making an eight-level aggravated felony enhancement
for his prior North Carolina conviction for taking indecent liberties with a child in
violation of North Carolina General Statute § 14-202.1. Guerrero-Flores contends
the enhancement should have been only four levels because the record did not
support the aggravated felony enhancement. The government cross appeals,
claiming that the district court should have imposed a sixteen-level enhancement
for a “crime of violence.”
The government commendably acknowledged in oral argument that the
eight-level enhancement was fair under the circumstances. Were we to vacate the
sentence and remand for resentencing, Guerrero-Flores would face the risk of a
sixteen-level enhancement, even though the prison term of the existing sentence
has almost expired.
We have carefully reviewed the record below and the arguments presented
to us on appeal. We conclude there is no sound reason to vacate the sentence and
remand for resentencing or to grant the government’s motion that this court take
judicial notice of matters outside this record.
2
The motion for judicial notice is DENIED and the judgment and sentence of
the district court is AFFIRMED.
3