FILED
NOT FOR PUBLICATION MAR 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50593
Plaintiff - Appellee, D.C. No. 8:12-cr-00129-JVS-2
v.
MEMORANDUM*
EVERARDO MENDOZA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted March 6, 2015
Pasadena, California
Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.
Everardo Mendoza appeals the sentence imposed following his plea of guilty
to a violation of 21 U.S.C. § 846, alleging that the district court erred by assigning
him two criminal history points under U.S.S.G. § 4A1.1(d) and that he is
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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accordingly eligible for safety-valve relief under U.S.S.G. § 2D1.1(b)(17). The
district court’s interpretation of the Sentencing Guidelines is reviewed de novo, but
the application of the Guidelines to the facts is reviewed for abuse of discretion,
and factual findings are reviewed for clear error. United States v. Alba-Flores, 577
F.3d 1104, 1107 (9th Cir. 2009). “The district court’s assessment of prior
convictions in calculating a defendant’s criminal history category is reviewed de
novo.” United States v. Franco-Flores, 558 F.3d 978, 980 (9th Cir. 2009).
Mendoza’s sole argument for relief is that “[s]entences resulting from
convictions that (A) have been reversed or vacated because of errors of law or
because of subsequently discovered evidence exonerating the defendant, or (B)
have been ruled constitutionally invalid . . . are not to be counted.” U.S.S.G.
§ 4A1.2 cmt. n.6. However, Mendoza was under a diversionary disposition at the
time he committed the instant offense, see U.S.S.G. § 4A1.2(f), and he failed to
adduce any evidence supporting his contention that the diversionary disposition
was subsequently reversed or vacated for one of the reasons specified above.
Accordingly, the district court properly assessed two criminal history points under
U.S.S.G. § 4A1.1(d), rendering Mendoza ineligible for safety-valve relief under
U.S.S.G. § 2D1.1(b)(17). See U.S.S.G. § 5C1.2(a)(1).
AFFIRMED.
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