United States v. Alfonso Lozano-Torres

FILED
NOT FOR PUBLICATION MAR 28 2011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. 08-50347

Plaintiff-Appellee, D.C. No. CR 07-1317-GHK

ALFONSO LOZANO-TORRES, etc,
MEMORANDUM *
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding

Submitted, August 2, 2010
Pasadena, California

Before: KOZINSKI, Chief Judge, REINHARDT, Circuit Judge, and
WHYTE,** District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
Alfonso Lozano-Torres contends that the trial court erred when it assessed

criminal history points for his state convictions for evading police and leaving the

scene of an accident. He claimed in his opening brief that the offenses occurred

during the commission of his immigration offense, but now concedes that United

States v. Cruz-Gramajo, 570 F.3d 1162 (9th Cir. 2009), cert. denied, 130 S. Ct.

646 (2009), forecloses that argument.

Lozano-Torres also asserts that he evaded police and left the scene of an

accident “in the course of attempting to avoid detection or responsibility for [his

current immigration offense]” and, therefore, those offenses should have been

treated as relevant conduct and not counted as prior offenses in calculating criminal

history. U.S.S.G. § 1B1.3(a)(1)(A). We recently held that conduct which was

motivated to avoid detection should be treated as relevant conduct and not as a

prior offense for criminal history purposes. United States v. Rivera-Gomez, ---

F.3d ----, 2011 WL 310345, at *6 (9th Cir. Feb. 2, 2011).

Although Rivera-Gomez had not been decided at the time Lozano-Torres

was sentenced, the district court held a hearing focused specifically on the question

of how the offenses should be treated:

THE COURT: [T]his matter’s back on our calendar because the last time we
were here I wanted to know more about the circumstances of this State conviction
for felony evading. You [defense counsel] had made the argument that that should
be counted as relevant conduct and not as a separate prior conviction for purposes

2
of calculation of the criminal history category and, depending upon whether I
counted it or not counted it, it would make a difference in terms of criminal history
calculation.

The court examined the police report on the evasion offenses, listened to the

parties’ arguments and found:

THE COURT: But he feared he was getting caught for having four beers and
driving, not fear that somehow they were going after him because of his
immigration status.

....

THE COURT: There’s absolutely no evidence that he ran because of his
immigration status, zero, other than your speculation on this record.

....

THE COURT: All right. Having fully considered the arguments of counsel,
the Court finds and concludes that the felony evading conviction that we’ve been
talking about is countable as a prior conviction and is not relevant conduct for all
the reasons that were already stated on the record.

We review the district court’s interpretation of the Sentencing Guidelines de

novo, the district court’s application of the Guidelines to the facts of the case for

abuse of discretion, and the district court’s factual findings for clear error. United

States v. Cruz-Gramajo, 570 F.3d at 1167. In this case, the court's finding that the

evasion offenses were not committed with the intent to avoid detection as an illegal

alien was not clear error; the court did not abuse its discretion in applying the

Guidelines to the facts as found; and the court correctly treated the evasion

3
offenses as includable in Lozano-Torres’s criminal history since they were not

relevant conduct to his current immigration offense.

AFFIRMED.