FILED
NOT FOR PUBLICATION NOV 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50558
Plaintiff - Appellee, D.C. No. 2:12-cr-00524-CAS-1
v. MEMORANDUM*
JOSE LUIS CRUZ-PALACIOS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted November 8, 2013**
Pasadena, California
Before: FISHER and CLIFTON, Circuit Judges, and SINGLETON, Senior
District Judge.***
*
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).
***
The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
Jose Luis Cruz-Palacios appeals a 24-month sentence imposed by the district
court after Cruz pled guilty to one count of being an illegal alien found in the
United States after deportation in violation of 8 U.S.C.§ 1326(a), (b)(2). Cruz
makes a single argument that the district court erred in assigning to Cruz’s earlier
conviction two criminal history points under United States Sentencing Guidelines
(“U.S.S.G.”) § 4A1.1(b) rather than one criminal history point under U.S.S.G. §
4A1.1(c). Cruz received a sentence of 180 days’ imprisonment which clearly
qualifies for the two points under U.S.S.G. § 4A1.1(b). See U.S.S.G. §
4A1.2(b)(1) (“The term ‘sentence of imprisonment’ means a sentence of
incarceration and refers to the maximum sentence imposed.”). The district court
concluded that Cruz had served at least two days in custody on the offense and was
thus properly subject to two points. See id. § 4A1.2 cmt. n.2 (“To qualify as a
sentence of imprisonment, the defendant must have actually served a period of
imprisonment on such sentence . . . .”).
Cruz argues on appeal that, because he spent only two pre-trial days in
custody prior to conversion, he did not actually serve a period of imprisonment, as
required by § 4A1.1(b). Cruz also argues that his prior sentence of imprisonment
was converted to 52 days of weekend community service, which standing alone
would only qualify for one point. See U.S.S.G. § 4A1.2 cmt. n.4 (“A sentence
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which specifies a fine or other non-incarcerative disposition as an alternative to a
term of imprisonment . . . is treated as a non-imprisonment sentence.”). As the
government notes in its opposition, however, Cruz’s Criminal Case Report
indicates that, in addition to the two pre-trial days, Cruz served approximately two
weeks in custody after his bail bond was exonerated and before his motion to
participate in the Riverside County Sheriff’s Office weekend program was heard
and granted. Cruz has not replied or otherwise attempted to correct any
inaccuracies in the record. We therefore decline to address Cruz’s argument that
time in pre-sentencing custody cannot count as a “sentence of imprisonment”
under §§ 4A1.1 and 4A1.2(b)(1) because the two weeks he later spent in custody
plainly qualify as such, and we reject his argument that his sentence specified a
non-incarcerative alternative for the same reason.
AFFIRMED.
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