United States v. Francisco Gutierrez-Arredondo

FILED
NOT FOR PUBLICATION MAY 04 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-30235

Plaintiff - Appellee, D.C. No. 2:09-cr-02089-RHW-1

v.
MEMORANDUM*
FRANCISCO GUTIERREZ-
ARREDONDO,

Defendant - Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding

Submitted May 2, 2011**
Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

Francisco Gutierrez-Arredondo (“Gutierrez”) appeals from the district

court’s judgment sentencing him to 120 months based on his guilty plea to federal

charges under 21 U.S.C. § 846 and 18 U.S.C. § 2. Gutierrez argues that the district

*
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).
court improperly imposed three criminal history points, precluding him from

eligibility for “safety valve” consideration, which would allow the district court to

impose a sentence under the United States Sentencing Guidelines, notwithstanding

the ten-year statutory minimum sentence for his offense. See 18 U.S.C. § 3553(f);

U.S. Sentencing Guidelines Manual § 5C1.2(a). We have jurisdiction pursuant to

28 U.S.C. § 1291 and we affirm.

We “review[] the district court’s interpretation of the Sentencing Guidelines

de novo, the district court’s application of the Sentencing Guidelines to the facts of

this case for abuse of discretion, and the district court’s factual findings for clear

error.” United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).

Gutierrez argues that he was not “under a[] criminal justice sentence” at the

time he committed his federal offense and therefore the district court improperly

applied two criminal history points under § 4A1.1(d) of the Guidelines. See U.S.

Sentencing Guidelines Manual § 4A1.1(d). But the conditions imposed upon

Gutierrez by the California court when it deferred the judgment on his state law

possession charge constitute a “criminal justice sentence” because they included a

“custodial or supervisory component.” See United States v. Franco-Flores, 558

F.3d 978, 982 (9th Cir.), cert. denied, 130 S. Ct. 249 (2009) (“[A] suspended

sentence with a supervisory or custodial component can constitute a ‘criminal

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justice sentence’ under section 4A1.1(d).”); U.S. Sentencing Guidelines Manual

§ 4A1.1 cmt. n.4.

Because the district court did not abuse its discretion in assessing two

criminal history points under § 4A1.1(d), Gutierrez was ineligible for safety valve

consideration. See U.S. Sentencing Guidelines Manual § 5C1.2(a)(1) (defendant

ineligible for safety valve if he has more than one criminal history point).

We decline to reach Gutierrez’s challenge to his California possession

conviction—ultimately entered after Gutierrez failed to appear at a status

conference as part of his deferred judgment—which Gutierrez collaterally attacks

as obtained in violation of his Sixth Amendment right to counsel. See City of Los

Angeles v. County of Kern, 581 F.3d 841, 846 (9th Cir. 2009) (“[A] federal court

should not decide federal constitutional questions where a dispositive

nonconstitutional ground is available.”). The alleged Sixth Amendment violation

does not implicate the propriety of imposing two criminal history points because

Gutierrez was “under a[] criminal justice sentence” since the supervisory

conditions imposed on him as a result of the deferred judgment occurred before

Gutierrez’s conviction for that offense was formally entered (i.e., before the

alleged Sixth Amendment violation took place). See U.S. Sentencing Guidelines

Manual § 4A1.1(d). Therefore, even assuming the district court erred in imposing

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one criminal history point for Gutierrez’s California conviction pursuant to

§ 4A1.1(c) because that conviction was obtained in violation of his right to

counsel, Gutierrez would remain ineligible for safety valve treatment.

AFFIRMED.