Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding, D.C. No. 2:09-cr-00449-RGK-1.
The opinion of the court was delivered by: Bybee, Circuit Judge
Argued and Submitted May 3, 2010 -- Pasadena, California
Before: John T. Noonan, Richard R. Clifton and Jay S. Bybee, Circuit Judges.
Defendant-Appellant Robert Garcia-Jimenez ("Garcia"), a native and citizen of Mexico, appeals the thirty-seven-month sentence imposed by the district court following his guilty plea to one count of being an illegal alien found in the United States after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). Garcia argues that the district court committed two errors when it calculated his criminal history category under the United States Sentencing Guidelines ("U.S.S.G."): (1) adding two criminal history points under U.S.S.G. § 4A1.1(d), which requires additional points "if the defendant committed the instant offense while under any criminal justice sentence, including... parole"; and (2) adding one criminal history point under U.S.S.G. § 4A1.1(e), which requires additional points "if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under [U.S.S.G. § 4A1.1](a)." We hold that the district court correctly added two points under § 4A1.1(d) and one point under § 4A1.1(e) and therefore affirm Garcia's sentence.
The dates and order of the events leading up to Garcia's instant offense are important to both issues on appeal, and they are undisputed. On December 11, 2001, Garcia was convicted in Los Angeles County Superior Court of second-degree robbery, in violation of California Penal Code § 211. He was sentenced to three years' imprisonment.
Garcia was first admitted into the California Department of Corrections ("CDC") on January 23, 2002. He was paroled on June 29, 2004. That same day, Garcia was deported for the first time. On December 23, 2005 (having returned to the United States at some point), he was sent back to the CDC again for violation of his parole. He was then paroled a second time on June 20, 2006, and then deported a second time that same day. He again returned to the United States at some point. On December 3, 2006, Garcia was arrested by the Los Angeles Police Department ("LAPD") for first-degree residential burglary, in violation of California Penal Code § 459, and a case was filed against him in Los Angeles County Superior Court. On April 20, 2007, he was again returned to the CDC for violation of his parole, and was then paroled a third time on August 4, 2007. On August 14, 2007, Garcia was arraigned on the residential burglary charge and remanded to custody. On August 28, 2007, the residential burglary charge against Garcia was dismissed because the prosecution was unable to proceed.
On November 5, 2007, Garcia began working at a community service program called "Homeboy Industries."*fn1 On January 15, 2008, Garcia was arrested by the LAPD for first-degree residential burglary under California Penal Code § 459, for which no court filing has been completed. On January 18, 2008, Garcia's first term of employment at Homeboy Industries ended. On June 19, 2008, Garcia was returned to the CDC for a third violation of his parole relating to the original robbery charge, and then discharged a fourth time on June 28, 2008, because the statutory maximum on that charge had been reached. Garcia was employed by Homeboy Industries a second time from June 30, 2008, until September 20, 2008. This brings us to the instant offense. On April 2, 2009, Garcia was in the custody of the LAPD,*fn2 which then notified the Immigration and Customs Enforcement ("ICE") of Garcia's arrest. On April 6, 2009, Garcia was transferred to ICE custody. On May 8, 2009, the government filed an information charging Garcia with having been an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). The indictment also alleged that at least one of Garcia's deportations occurred subsequent to Garcia's conviction for an "aggravated felony," namely the second-degree robbery conviction in 2001.
Garcia pleaded guilty to the charge in the information pursuant to a binding plea agreement with the government. This agreement contained a stipulation by the parties that the district court should impose a sentence equal to the low end of the applicable Sentencing Guidelines range determined by a total offense level of seventeen (agreed to by the parties) and "the criminal history category calculated by the court in accordance with Chapter 4 of the Sentencing Guidelines."
Pursuant to this agreement, the United States Probation Office ("USPO") submitted a Presentence Investigation Report ("PSR") addressing only Garcia's criminal history. The original PSR determined that Garcia fell within criminal history category III based on five criminal history points.*fn3
However, in response to the government's position paper regarding sentencing, the USPO submitted a Modified Presentence Investigation Report ("MPSR") and Addendum determining that Garcia fell within criminal history category IV based on seven criminal history points.
For the purposes of this appeal, the main difference between the two reports is that the USPO accepted the government's position that Garcia "committed the instant [illegal re-entry] offense[-on April 2, 2009-]less than two years after release from imprisonment[-on June 28, 2008-]on a sentence counted under [U.S.S.G. § 4A1.1(a), his sentence for the robbery conviction]," U.S.S.G. § 4A1.1(e), and thus the MPSR added two criminal history points under § 4A1.1(e). However, the USPO declined to add two additional criminal history points under U.S.S.G. § 4A1.1(d), which applies "if the defendant committed the instant offense while under any criminal justice sentence, including... parole." Contrary to the government's position, the USPO "used April 2, 2009," the date Garcia had been last arrested by the LAPD (and a day on which he was not on parole), "as the date on which Jimenez first committed this continuing[*fn4 ] [illegal re-entry] offense." The USPO found that the government had not proven by a preponderance of the evidence that Garcia first committed the ...