United States v. Guillermo Benitez , 399 F. App'x 295 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 13 2010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. 09-50589
Plaintiff - Appellee, D.C. No. 2:09-cr-00373-MMM-1
v.
MEMORANDUM *
GUILLERMO ARREDONDO BENITEZ,
AKA Guillermo Benitez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted October 4, 2010 **
Pasadena, California
Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.
Guillermo Arredondo Benitez (“Arredondo Benitez”) appeals his sentence of
60 months imprisonment imposed by the federal district court for one count of
*
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).
being an illegal alien found in the United States following deportation. We have
jurisdiction under 18 U.S.C. § 3732(a), and we affirm the district court.
Arredondo Benitez contends that the district court erred in assigning him one
criminal history point under the U.S. Sentencing Guidelines for an unlicensed
driving conviction in California state court that resulted in 24 months of summary
probation. Because Arredondo Benitez did not raise this objection before the
district court, we review only for plain error. United States v. Guzman-Mata, 579
F.3d 1065, 1068 (9th Cir. 2009).
Arredondo Benitez claims his term of probation should not count under the
Guidelines because, he asserts, his presentence report indicates the term was
suspended. This assertion is contradicted by the California Penal Code, which
makes clear that probation is a result of a suspended sentence, and not something
that is itself suspended. See Cal. Penal Code § 1203(a). Arredondo Benitez
contends that in United States v. Mejia, 559 F.3d 1113, 1115-16 (9th Cir. 2009),
this court interpreted a suspended sentence similar to his as describing a
suspension of summary probation. However, other statements in Mejia make clear
that the court saw suspension of the sentence (which eliminated all but 16 days of
the prison term) and termination of probation (which eliminated all but 3 days of
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probation) as two distinct acts. See id. Thus, the district court did not plainly err
in concluding Arredondo Benitez’s term of probation had not been suspended.
Arredondo Benitez also argues summary probation does not count as
“probation” under the Guidelines because it lacks a supervisory or custodial
component. This argument is contradicted by our decision in United States v.
McCrudden, 894 F.2d 338, 339 (9th Cir. 1990), which states that “[t]he guidelines
make no provision for treating ‘unsupervised’ probation as less than probation.
Even if unsupervised, probation can be revoked and replaced by a sentence of
greater punishment if further offenses are committed during the probationary
period.” Thus, the district court did not plainly err in treating summary probation
as “probation” under the Guidelines.
AFFIRMED.
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