FILED
NOT FOR PUBLICATION MAR 25 2011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. 09-50402
Plaintiff - Appellee, D.C. No. 2:09-cr-00241-R-1
v.
MEMORANDUM *
JUAN PABLO DELGADO, AKA Juan
Pablo Salcedo-Delgado,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted November 4, 2010
Pasadena, California
Before: RAWLINSON and M. SMITH, Circuit Judges, and JONES **, District
Judge.
Juan Pablo Delgado appeals his conviction and 55-month sentence for illegal
reentry into the United States after deportation, 8 U.S.C. § 1326, and for being an
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
*
The Honorable Robert C. Jones, United States District Judge for the District of
Nevada, sitting by designation.
alien or felon in possession of a firearm, 18 U.S.C. § 922(g)(1), (5)(A). On appeal,
Delgado argues that the district court: (a) erred in convicting him under §
1326(b)(2) in addition to § 1326(a); (b) abused its discretion in denying his motion
to continue the sentencing hearing so he could attempt to retain private counsel;
and (c) plainly erred in assessing two additional criminal history points under §
4A1.1(d) of the Sentencing Guidelines.
I.
We review whether the district court properly entered judgment pursuant to
both § 1326(a) and § 1326(b)(2) de novo. United States v. Rivera-Sanchez, 222
F.3d 1057, 1061 (9th Cir. 2000).
Section 1326(a) defines the offense of illegal reentry and prescribes a
maximum two-year sentence of imprisonment. 8 U.S.C. § 1326(a). Section
1326(b)(2) is a sentencing-enhancement provision that increases the maximum
sentence under § 1326(a) to 20 years if the alien’s removal was subsequent to
conviction for an aggravated felony. 8 U.S.C. § 1326(b)(2); United States v.
Maria-Gonzalez, 268 F.3d 664, 671 (9th Cir. 2001).
Here, the district court erred when it entered judgment against Delgado for a
conviction under “Title 8 USC 1326(a)(b)(2).” Because Delgado should have been
convicted under § 1326(a) only, we remand the case to the district court with
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instructions to amend the judgment to reflect a conviction under § 1326(a) only.
See Maria-Gonzalez, 268 F.3d at 671.
II.
We review a district court’s denial of a motion for continuance that arguably
implicates a defendant’s right to counsel for abuse of discretion. United States v.
Thompson, 587 F.3d 1165, 1171 (9th Cir. 2009).
When exercising its discretion, the district court must consider the effect of
its decision on the right to counsel. United States v. Garrett, 179 F.3d 1143, 1147
(9th Cir. 1999 )(en banc). The court “must balance several factors to determine if
the denial was ‘fair and reasonable.’” Thompson, 587 F.3d at 1174 (quoting United
States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986)). These factors include: “[1]
whether the continuance would inconvenience witnesses, the court, counsel, or the
parties; [2] whether other continuances have been granted; [3] whether legitimate
reasons exist for the delay; [4] whether the delay is the defendant’s fault; and [5]
whether a denial would prejudice the defendant.” Id. When denying a continuance
that arguably implicates the Sixth Amendment right to counsel, “the district court
should summarize in the record its reasons for the denial.” Id. (quoting Garrett,
179 F.3d at 1147).
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Here, the district court sufficiently summarized on the record its reasons for
denying the motion to continue the sentencing hearing. The district court stated
that Delgado’s request for time to retain private counsel was “too iffy” and noted
that defense counsel was prepared. Therefore, the district court did not abuse its
discretion in denying Delgado’s request to continue.
III.
Delgado disputes the assignment of two criminal history points under
U.S.S.G. § 4A1.1(d) because he was subject to an outstanding probation violation
warrant from California when he committed the instant offense. Because he did
not raise this issue below, plain error review applies. To establish plain error,
Delgado must show: (1) error; (2) that is plain; (3) that affects substantial rights;
and (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005)(en
banc).
Section 4A1.1(d) adds two criminal history points “if the defendant
committed the instant offense while under any criminal justice sentence, including
probation, parole, supervised release, imprisonment, work release, or escape
status.” U.S.S.G. § 4A1.1(d).
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For the purposes of § 4A1.1(d), a defendant who commits the instant
offense while a violation warrant from a prior sentence is outstanding
(e.g., a probation, parole, or supervised release violation warrant) shall
be deemed to be under a criminal justice sentence if that sentence is
otherwise countable, even if that sentence would have expired absent
such warrant.
U.S.S.G. § 4A1.2(m). Generally, collateral attacks on prior state convictions or
sentences are not permitted in federal sentencing proceedings. United States v.
Saya, 247 F.3d 929, 940 (9th Cir. 2001); see also U.S.S.G. § 4A1.2, cmt. (n.6)
Here, Delgado does not dispute the existence of an outstanding California
warrant at the time of the instant offense. Accordingly, we hold that the district did
not plainly err when it assessed two criminal history points under U.S.S.G.
§ 4A1.1(d).
IV.
Accordingly, we affirm Delgado’s conviction and sentence but remand with
instructions for the district court to amend the entry of judgment to eliminate
reference to conviction under 8 U.S.C. § 1326(b)(2).
AFFIRMED and REMANDED.
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