United States v. Jose Hernandez-Contreras ( 2011 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                              MAY 20 2011
    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. 10-50201
    Plaintiff - Appellee,               D.C. No. 3:09-cr-02808-GT-1
    v.
    MEMORANDUM *
    JOSE HERNANDEZ-CONTRERAS,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    Gordon Thompson, Senior District Judge, Presiding
    Argued and Submitted May 6, 2011
    Pasadena, California
    Before: NOONAN and PAEZ, Circuit Judges, and KORMAN, * District Judge.                 *
    Jose Hernandez-Contreras, native and citizen of Mexico, appeals his
    conviction and sentence after he pled guilty to illegal reentry after removal in
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Edward R. Korman, Senior District Judge for the U.S.
    District Court for the Eastern District of New York, Brooklyn, sitting by
    designation.
    violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291
    and 18 U.S.C. § 3742(a), and we affirm.
    The government cited Ninth Circuit authority establishing that California
    Penal Code § 459 qualifies as an “aggravated felony” under 8 U.S.C.
    § 1101(a)(43)(F), thus calling for an eight-level increase in Hernandez’s base
    offense level under U.S.S.G. § 2L1.2. Although the government had agreed to
    recommend a lower four-level increase, the government’s legal argument was
    consistent with the its “duty to ensure that the court has complete and accurate
    information.” United States v. Maldonado, 
    215 F.3d 1046
    , 1052 (9th Cir. 2000).
    Because the government consistently recommended the four-level increase agreed
    to by the parties even though the facts called for a higher base offense level, the
    government did not breach the plea agreement.
    The district court’s application of the eight-level enhancement was proper
    because Hernandez’s first degree burglary conviction under California Penal Code
    § 459 categorically qualifies as an “aggravated felony.” See 8 U.S.C.
    § 1101(a)(43)(F) (defining as an aggravated felony a “crime of violence” as
    defined in 18 U.S.C. § 16 for which the sentence of imprisonment is at least one
    year); United States v. Becker, 
    919 F.2d 568
    , 571 (9th Cir. 1990) (holding that first
    degree burglary under § 459 qualifies as a “crime of violence” under 18 U.S.C. §
    2
    16(b)). Moreover, it is well established that the district court could impose a
    sentencing enhancement based on the section 459 conviction even though it was
    not alleged in the information or admitted by Hernandez. See Apprendi v. New
    Jersey, 
    530 U.S. 466
    , 490 (2000); United States v. Corona-Sanchez, 
    291 F.3d 1201
    , 1212 (9th Cir. 2002) (en banc) (holding that a presentence report may
    establish the fact of a prior conviction where the defendant does not contest that he
    was not convicted under the relevant statute), abrogated on other grounds by
    U.S.S.G. § 2L1.2 cmt. n.5.
    The district court’s order overruling Hernandez’s objections to the
    Presentence Report specifically addressed each of Hernandez’s arguments, and
    therefore complied with the district court’s obligation to “rule on the dispute.”
    Fed. R. Crim. P. 32(i)(3)(B). Although the order was filed after sentencing, the
    court informed Hernandez of the order at sentencing, and Hernandez did not
    request further explanation.
    Finally, Hernandez’s sentence is procedurally and substantively reasonable
    because the district court correctly calculated Hernandez’s Guidelines range, it
    discussed Hernandez’s personal and criminal history, it considered the 18 U.S.C.
    § 3553(a) factors, and it concluded that a high-end, 33-month sentence was
    appropriate given the need for the sentence imposed to provide punishment and
    3
    adequate deterrence. See United States v. Carty, 
    520 F.3d 984
    , 992–93 (9th Cir.
    2008) (en banc).
    AFFIRMED
    4
    

Document Info

Docket Number: 10-50201

Judges: Noonan, Paez, Korman

Filed Date: 5/20/2011

Precedential Status: Non-Precedential

Modified Date: 3/2/2024