United States v. Luis Montoya-Ramirez , 473 F. App'x 732 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 25 2012
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. 11-30158
Plaintiff - Appellee, D.C. No. CR 10-0372 KI-1
v. MEMORANDUM *
LUIS MONTOYA-RAMIREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Submitted May 7, 2012 **
Portland, Oregon
Before: TASHIMA, TALLMAN, and IKUTA, Circuit Judges.
Luis Montoya-Ramirez appeals the 33-month sentence imposed following
his guilty plea conviction for re-entry after deportation, in violation of 8 U.S.C. §
1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
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).
We review the district court’s interpretation of the Sentencing Guidelines de
novo, and its application of the Guidelines for abuse of discretion. United States v.
Rising Sun, 522 F.3d 989, 993 (9th Cir. 2008).
The district court did not engage in impermissible-double counting when it
calculated Montoya-Ramirez’s criminal history score. A sentence imposed for a
probation revocation is counted separately from a sentence for a new criminal
conviction imposed at the same time. U.S.S.G. § 4A1.2; United States v. Palmer,
946 F.2d 97, 99 (9th Cir. 1991). Therefore, the district court did not err when it
assigned three criminal history points for the sentence resulting from the
revocation of probation on Montoya-Ramirez’s prior burglary conviction, and an
additional two points for the sentence on the DUI conviction that led to the
revocation.
The district court did not abuse its discretion by failing to grant Montoya-
Ramirez’s request for a 12-month downward variance pursuant to U.S.S.G. §
5G1.3 as credit for time served on his state burglary conviction. U.S.S.G. § 5G1.3
only applies to defendants subject to an undischarged term of imprisonment. See
United States v. Turnipseed, 159 F.3d 383, 387 (9th Cir. 1998). As Montoya-
Ramirez concedes, his state prison term was not undischarged at the time of
sentencing on the instant offense. He also concedes that his burglary conviction is
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not technically relevant conduct to the instant offense, so U.S.S.G. § 5G1.3(b) does
not apply. The district court acted within its discretion when it considered the time
Montoya-Ramirez served in state custody, along with other factors listed in 18
U.S.C. § 3553(a), and imposed a sentence 4 months below the Guidelines range.
AFFIRMED.
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