FILED
NOT FOR PUBLICATION
MAR 10 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50062
Plaintiff - Appellee, D.C. No. 3:14-cr-02952-GT-1
v.
MEMORANDUM*
RAUL BANUELOS-ESTRADA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Senior District Judge, Presiding
Submitted March 7, 2016**
Pasadena, California
Before: CLIFTON and IKUTA, Circuit Judges and BLOCK,*** 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 Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Raul Banuelos-Estrada, a citizen of Mexico, was sentenced to thirty months’
imprisonment for illegal reentry, in violation of 8 U.S.C. § 1326. He appeals the
district court’s assessment of his criminal history, see U.S.S.G. § 4A1.1(d), and the
reasonableness of his sentence. We affirm.
The district court assessed Banuelos-Estrada two criminal history (“CH”)
points for being under a criminal justice sentence, U.S.S.G. § 4A1.1(d), because he
had not completed a sentence from a prior Nevada state conviction, for which an
outstanding bench warrant was issued. Banuelos-Estrada argues that he could not
have responded to the outstanding bench warrant because he was incarcerated at
the time it was issued. However, the two CH points were not imposed for
Banuelos-Estrada’s failure to respond to the bench warrant. Rather, the points
were imposed because the underlying sentence was not complete when he re-
entered the United States; the outstanding bench warrant merely confirms that fact.
The district court also imposed an additional CH point pursuant to
§ 4A1.1(c) due to a prior misdemeanor possession conviction for which Banuelos-
Estrada received a suspended sentence. He was later held in contempt for failing to
comply with the conditions of this sentence. Although Banuelos-Estrada argues
that the district court erred by assessing a CH point for his being held in contempt,
the CH point was not for contempt, but for the underlying misdemeanor. See
U.S.S.G. § 4A1.2(f) (“A diversionary disposition resulting from a finding or
admission of guilt . . . is counted as a sentence under § 4A1.1(c)”); United States v.
Franco-Flores, 558 F.3d 978, 981 (9th Cir. 2009) (“[D]efendants who receive the
benefit of a rehabilitative sentence and continue to commit crimes should not be
treated with further leniency.”).
The district court acted within its discretion when denying Banuelos-Estrada
an evidentiary hearing at sentencing. United States v. Laurienti, 731 F.3d 967, 972
(9th Cir. 2013) (“[T]here is no general right to an evidentiary hearing at
sentencing. When a defendant disputes a fact relevant to sentencing, the district
court need only provide the parties a reasonable opportunity to present information
to the court.” (citations and internal quotation marks omitted)). Banuelos-Estrada
was permitted ample opportunity to rebut the pre-sentence report’s criminal-history
findings, which he did in a written objection and argument at sentencing. The
evidence establishing Banuelos-Estrada’s CH points was sufficiently reliable for
sentencing purposes. See United States v. Felix, 561 F.3d 1036, 1042–43 (9th Cir.
2009).
Lastly, Banuelos-Estrada’s sentence of thirty months’ imprisonment is
substantively reasonable. The district court’s decision to sentence Banuelos-
Estrada above his calculated guidelines range of eighteen to twenty-four months is
supported by Banuelos-Estrada’s extensive criminal history. Banuelos-Estrada has
been deported four times since 1999 and the instant conviction is his third for
illegal reentry under § 1326. Additionally, Banuelos-Estrada has an extensive
criminal history, which includes a number of battery convictions. Accordingly, the
district court did not abuse its discretion by imposing an above-guidelines sentence
of thirty months.
AFFIRMED.