FILED
NOT FOR PUBLICATION MAY 20 2011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. 10-50201
Plaintiff - Appellee, D.C. No. 3:09-cr-02808-GT-1
v.
MEMORANDUM *
JOSE HERNANDEZ-CONTRERAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Senior District Judge, Presiding
Argued and Submitted May 6, 2011
Pasadena, California
Before: NOONAN and PAEZ, Circuit Judges, and KORMAN, * District Judge. *
Jose Hernandez-Contreras, native and citizen of Mexico, appeals his
conviction and sentence after he pled guilty to illegal reentry after removal in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, Brooklyn, sitting by
designation.
violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a), and we affirm.
The government cited Ninth Circuit authority establishing that California
Penal Code § 459 qualifies as an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(F), thus calling for an eight-level increase in Hernandez’s base
offense level under U.S.S.G. § 2L1.2. Although the government had agreed to
recommend a lower four-level increase, the government’s legal argument was
consistent with the its “duty to ensure that the court has complete and accurate
information.” United States v. Maldonado, 215 F.3d 1046, 1052 (9th Cir. 2000).
Because the government consistently recommended the four-level increase agreed
to by the parties even though the facts called for a higher base offense level, the
government did not breach the plea agreement.
The district court’s application of the eight-level enhancement was proper
because Hernandez’s first degree burglary conviction under California Penal Code
§ 459 categorically qualifies as an “aggravated felony.” See 8 U.S.C.
§ 1101(a)(43)(F) (defining as an aggravated felony a “crime of violence” as
defined in 18 U.S.C. § 16 for which the sentence of imprisonment is at least one
year); United States v. Becker, 919 F.2d 568, 571 (9th Cir. 1990) (holding that first
degree burglary under § 459 qualifies as a “crime of violence” under 18 U.S.C. §
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16(b)). Moreover, it is well established that the district court could impose a
sentencing enhancement based on the section 459 conviction even though it was
not alleged in the information or admitted by Hernandez. See Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000); United States v. Corona-Sanchez, 291 F.3d
1201, 1212 (9th Cir. 2002) (en banc) (holding that a presentence report may
establish the fact of a prior conviction where the defendant does not contest that he
was not convicted under the relevant statute), abrogated on other grounds by
U.S.S.G. § 2L1.2 cmt. n.5.
The district court’s order overruling Hernandez’s objections to the
Presentence Report specifically addressed each of Hernandez’s arguments, and
therefore complied with the district court’s obligation to “rule on the dispute.”
Fed. R. Crim. P. 32(i)(3)(B). Although the order was filed after sentencing, the
court informed Hernandez of the order at sentencing, and Hernandez did not
request further explanation.
Finally, Hernandez’s sentence is procedurally and substantively reasonable
because the district court correctly calculated Hernandez’s Guidelines range, it
discussed Hernandez’s personal and criminal history, it considered the 18 U.S.C.
§ 3553(a) factors, and it concluded that a high-end, 33-month sentence was
appropriate given the need for the sentence imposed to provide punishment and
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adequate deterrence. See United States v. Carty, 520 F.3d 984, 992–93 (9th Cir.
2008) (en banc).
AFFIRMED
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