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NOT FOR PUBLICATION MAY 04 2011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.
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