FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50632
Plaintiff-Appellee, D.C. No.
v. 3:09-cr-00110-
CESAR JULIO SALAZAR-MOJICA, BTM-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted
December 9, 2010—Pasadena, California
Filed February 24, 2011
Before: Harry Pregerson and Richard R. Clifton,
Circuit Judges, and H. Russel Holland,
Senior District Judge.*
Opinion by Judge Clifton
*The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
2873
UNITED STATES v. SALAZAR-MOJICA 2875
COUNSEL
Zandra L. Lopez, San Diego, California, for the appellant.
Tara K. McGrath, Assistant United States Attorney, San
Diego, California, for the appellee.
OPINION
CLIFTON, Circuit Judge:
Cesar Julio Salazar-Mojica (“Salazar”) was convicted of
being a deported alien found in the United States in violation
of 8 U.S.C. § 1326. In calculating Salazar’s sentencing range
under the now-advisory Sentencing Guidelines, the district
court applied a 16-level sentencing enhancement on two inde-
pendent grounds, one of which was that prior to his deporta-
tion Salazar had been convicted of a felony crime of violence.
After his deportation and his arrest for his current offense, but
before his conviction and sentencing, Salazar successfully
moved in state court to reduce that previous conviction to a
2876 UNITED STATES v. SALAZAR-MOJICA
misdemeanor. Salazar thus argues that his previous conviction
cannot be counted as a felony crime of violence because it
was not a conviction for a felony. We conclude that the rele-
vant time for determining whether a prior conviction was a
felony for purposes of the enhancement is the time of the
defendant’s deportation. Because Salazar’s conviction for a
crime of violence was a felony conviction at the time of his
deportation, application of the 16-level enhancement was
appropriate, despite the subsequent reduction to a misdemea-
nor. Salazar also argues that the sentence imposed on him was
too harsh and was substantively unreasonable, but we are not
persuaded by that argument. We thus affirm the sentence
imposed upon Salazar by the district court.
I. Background
In 1980 Salazar was convicted in California state court on
a charge of assault by means of force and with a deadly
weapon, in violation of California Penal Code § 245(a). Sala-
zar was initially sentenced to probation for three years, with
43 days spent in jail as a condition of probation. After violat-
ing the terms of probation, however, Salazar was sentenced to
three years in prison in 1982.
After serving that sentence, Salazar, who is a Mexican citi-
zen, was deported from the United States. Indeed, Salazar has
been deported several times, most recently on June 5, 2008.
A few weeks later, on July 25, 2008, the Border Patrol
arrested Salazar after he was observed walking along an inter-
state highway approximately six miles north of the California
—Mexico border. Slightly more than a year after that, on July
29, 2009, Salazar was convicted by jury trial of being a
deported alien found in the United States in violation of 8
U.S.C. § 1326. It is the sentence imposed upon Salazar for
that conviction that is the subject of this appeal.
After his July 2008 arrest but before his July 2009 convic-
tion, Salazar brought a motion in Los Angeles Superior Court
UNITED STATES v. SALAZAR-MOJICA 2877
to reduce his 1980 assault conviction to a misdemeanor, pur-
suant to California Penal Code § 17(b). The state court
granted that motion on June 3, 2009.
Nonetheless, in sentencing Salazar, the district court treated
the 1980 conviction as a felony conviction and concluded that
the prior conviction warranted a 16-level enhancement of
Salazar’s offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii).1
The guideline range calculated by the district court, based in
part upon that enhancement, was 84 to 105 months. After con-
sideration of the 18 U.S.C. § 3553(a) factors, the district court
sentenced Salazar to incarceration for 66 months, a term sub-
stantially shorter than the calculated guideline range.
II. Discussion
Salazar appeals his sentence on two grounds. First, he
objects to the district court’s application of the 16-level sen-
tencing enhancement in determining the advisory sentencing
guideline range. Second, he contends that the imposed sen-
tence of 66 months was substantively unreasonable.
We review de novo the district court’s interpretation of the
Sentencing Guidelines. United States v. Laurico-Yeno, 590
F.3d 818, 820 (9th Cir. 2010). “The district court’s applica-
tion of the Guidelines to the facts of a particular case is
1
The district court also concluded that the 16-level sentencing enhance-
ment was independently justified by a separate 1998 conviction for a con-
trolled substance offense in violation of California Health & Safety Code
§ 11352(a), constituting a conviction for a felony drug trafficking offense
under U.S.S.G. § 2L1.2(b)(1)(A)(i). Salazar contends that his 1998 con-
viction did not support the 16-level enhancement because the judicially
noticeable documents did not unequivocally show that the conviction
involved a controlled substance under the Federal Controlled Substances
Act. Because we conclude that the 16-level enhancement was appropriate
based on Salazar’s assault conviction, we do not reach the issue of
whether the California controlled substance conviction would also support
the 16-level enhancement.
2878 UNITED STATES v. SALAZAR-MOJICA
reviewed for an abuse of discretion.” United States v.
Rodriguez-Cruz, 255 F.3d 1054, 1058 (9th Cir. 2001). Simi-
larly, we review the substantive reasonableness of a sentence
for abuse of discretion. United States v. Grissom, 525 F.3d
691, 696 (9th Cir. 2008).
A. The 16-Level Enhancement
[1] The Sentencing Guidelines provide that a 16-level
enhancement should be added to a defendant’s offense level
if he has previously been deported after being convicted of a
felony that falls into at least one of several categories, one of
which is a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii).
We have previously held that assault by means of force and
with a deadly weapon under California Penal Code § 245, the
offense for which Salazar was convicted in 1980, is categori-
cally a “crime of violence” for purposes of the 16-level
enhancement. United States v. Grajeda, 581 F.3d 1186, 1197
(9th Cir. 2009).
Salazar argues, however, that his assault conviction cannot
be treated as a “felony” to support the enhancement because
it was reduced by the state court from a felony to a misdemea-
nor in 2009. A violation of California Penal Code § 245 is
sometimes called a “wobbler” offense because it may be
treated and punished by the state court as either a felony or
a misdemeanor.2 Cal. Penal Code §§ 17(b), 245(a)(1); see
generally Ewing v. California, 538 U.S. 11, 16 (2003) (dis-
cussing offenses that may be classified as either felonies or
misdemeanors under California law). As noted above, the Los
Angeles Superior Court reduced the conviction to a misde-
meanor, pursuant to Cal. Penal Code § 17(b), on June 3, 2009.3
2
The fact that the law permits conviction as either a misdemeanor or fel-
ony does not preclude a categorical analysis. See, e.g., United States v.
Melchor-Meceno, 620 F.3d 1180, 1184 n.4 (9th Cir. 2010).
3
Misdemeanor sentences generally cannot exceed one year. Cal. Penal
Code § 19.2. The government argues that because Salazar had already
UNITED STATES v. SALAZAR-MOJICA 2879
[2] We are not persuaded that the state court’s relabeling
of the conviction in 2009 has any impact on the Guidelines
calculation in this case. Salazar was most recently deported in
2008, before his assault conviction was reduced to a misde-
meanor. U.S.S.G. § 2L1.2(b)(1) provides, in relevant part, that
a 16-level enhancement should be applied “[i]f the defendant
previously was deported, or unlawfully remained in the
United States, after . . . a conviction for a felony that is . . .
a crime of violence.” The requirements of § 2L1.2(b)(1) were
satisfied here. Salazar was deported after he was convicted in
1980 of a felony crime of violence, the § 245 assault.
[3] At the time of his deportation, the § 245 conviction was
properly viewed as a felony. “Under California law, a ‘wob-
bler’ is presumptively a felony and ‘remains a felony except
when the discretion [of the trial court] is actually exercised’
to make the crime a misdemeanor.” Ewing, 538 U.S. at 16
(quoting People v. Williams, 163 P.2d 692, 696 (1945)). The
documents concerning the 1980 conviction include a Certifi-
cate of Magistrate from the Municipal Court of Los Angeles
that stated in four places that Salazar pled guilty to a felony.
On the Clerk’s Report, the box for “misdemeanor” was not
checked.4 Moreover, although he was initially sentenced to
probation, that probation was revoked and he was then sen-
tenced to three years for the § 245 conviction, effectively con-
firming that offense as a felony. See People v. Wood, 62 Cal.
App. 4th 1262, 1266-67 (Cal. Ct. App. 1998).
been sentenced to three years for the offense in 1982, the California court
lacked discretion in 2009 to grant Salazar’s motion for a reduction to a
misdemeanor. As it is not necessary for our disposition of this appeal, we
do not reach that issue.
4
The fact that the initial sentence imposed was probation (with 43 days
in jail as a condition of probation) does not, itself, render the conviction
a misdemeanor. “[N]either a grant of probation, nor a suspension of the
imposition of sentence, is a judgment imposing a punishment of imprison-
ment for a term not exceeding one year [a misdemeanor].” United States
v. Bridgeforth, 441 F.3d 864, 871 (9th Cir. 2006) (citing United States v.
Robinson, 967 F.2d 287, 293 (9th Cir. 1992)).
2880 UNITED STATES v. SALAZAR-MOJICA
[4] Several other circuits have held that changes in felony
status subsequent to deportation are inapplicable for purposes
of sentencing enhancements.5 For instance, the Eleventh Cir-
cuit held:
We are not persuaded . . . that since [the defendant]
successfully got [his] conviction vacated after ille-
gally returning to the United States, the offense
should not count for purposes of the
§ 2L1.2(b)(1)(A) enhancement. By its plain language
[(“If the defendant previously was deported . . . after
. . . a conviction for a felony”)], the Guidelines’ rele-
vant time period is the time of deportation, not the
time of sentencing for an illegal reentry conviction.
United States v. Orduno-Mireles, 405 F.3d 960, 961 n.1 (11th
Cir. 2005).
[5] We agree. There is no indication in the Guidelines that
§ 2L1.2(b)(1) is intended to entertain changes in felony status
that occur after the deportation.6 We hold that the relevant
time for evaluating a prior conviction for purposes of the
5
See United States v. Garcia-Lopez, 375 F.3d 586, 588 (7th Cir. 2004)
(“[T]he appropriate inquiry is whether the defendant had been convicted
of a crime of violence at the time of deportation. Nothing in the guideline
suggests that the analysis should consider whether the conviction has been
vacated subsequent to the deportation but prior to the sentencing for the
reentry offense.”); United States v. Luna-Diaz, 222 F.3d 1, 4 (1st Cir.
2000) (noting that relevant time period is the time of deportation); United
States v. Campbell, 167 F.3d 94, 98 (2d Cir. 1999) (“[C]onvictions
vacated for reasons unrelated to guilt or flaws in the proceedings . . . are
not to be disregarded.”); United States v. Cisneros-Cabrera, 110 F.3d 746,
748 (10th Cir. 1997) (noting that whether the conviction is valid at time
of sentencing is irrelevant).
6
Although we do not rely upon this fact for our decision, we note that
under California law, a reduction in status from felony to misdemeanor is
not retroactive. “If ultimately a misdemeanor sentence is imposed, the
offense is a misdemeanor from that point on, but not retroactively.” Peo-
ple v. Feyrer, 226 P.3d 998, 1007 (Cal. 2010) (discussing a court’s discre-
tion under Cal. Penal Code § 17(b)); see also Gebremicael v. Cal.
Comm’n on Teacher Credentialing, 13 Cal. Rptr. 3d 777, 780 (Cal. Ct.
App. 2009) (“Relief under [§ 17] is not retroactive in operation. A crime
subject to its provisions is regarded as a misdemeanor only for purposes
subsequent to judgment.” (citations omitted)).
UNITED STATES v. SALAZAR-MOJICA 2881
U.S.S.G. § 2L1.2(b)(1)(A) enhancement is the time of depor-
tation. We thus conclude that the district court’s application
of a 16-level sentencing enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) was appropriate.
B. Substantive Reasonableness of the Sentence
Salazar contends that his 66-month sentence, though sub-
stantially lower than the Sentencing Guidelines range of 84-
105 months, was substantively unreasonable. We do not
agree.
[6] The district court did not abuse its discretion when
weighing the totality of the circumstances and the 18 U.S.C.
§ 3553 factors. See Gall v. United States, 552 U.S. 38, 51
(2007). Salazar primarily argues that the district court erred
by not accounting for the fact that his prior criminal conduct
occurred years before the instant offense. The record indicates
otherwise. The court properly balanced the relative age of the
prior convictions with the fact that Salazar had been deported
multiple times, had essentially flouted immigration laws, and
had engaged in illegal conduct while in the country. The
record clearly shows that the district court did consider the
age of the prior convictions when imposing the sentence.
Finally, Salazar’s broad allegation that the Sentencing
Commission lacked justification to authorize increases in
offense levels is without merit. See United States v. Ramirez-
Garcia, 269 F.3d 945, 947-48 (9th Cir. 2001) (noting the
empirical data considered by Congress and implemented by
the Commission); United States v. Ruiz-Chairez, 493 F.3d
1089, 1091-92 (9th Cir. 2007) (upholding sentencing
enhancements under § 2L1.2 as rational and not a violation of
equal protection).
The sentence imposed upon Salazar by the district court is
affirmed.
AFFIRMED.