United States v. Soto-Lara, 031312 FED9, 11-10116

Docket Nº:11-10116
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PEDRO SOTO-LARA, Defendant-Appellant.
Judge Panel:Before: HUG, B. FLETCHER, and PAEZ, Circuit Judges.
Case Date:March 13, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

PEDRO SOTO-LARA, Defendant-Appellant.

No. 11-10116

United States Court of Appeals, Ninth Circuit

March 13, 2012

NOT FOR PUBLICATION

Argued and Submitted February 13, 2012 San Francisco, California

Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding D.C. No. 4:10-cr-02332-DCB

Before: HUG, B. FLETCHER, and PAEZ, Circuit Judges.

MEMORANDUM [*]

Pedro Soto-Lara appeals his 28-month sentence, imposed following his guilty-plea conviction for illegal re-entry in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Soto-Lara contends that the district court erred when it calculated the applicable federal Sentencing Guidelines range. In particular, he argues that the district court incorrectly determined that his prior conviction for inflicting corporal injury on a spouse or cohabitant, in violation of California Penal Code § 273.5(a) was a felony for purposes of section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines. Therefore, Soto-Lara claims, the district court erred when it enhanced his offense level by 16 levels.

We review a district court's interpretation of the Sentencing Guidelines de novo, its factual determinations for clear error, and its application of the Sentencing Guidelines to the facts for abuse of discretion. United States v. Rising Sun, 522 F.3d 989, 993 (9th Cir. 2008).

Section 273.5(a) is a wobbler, which means that a violation of the statute may be punished either as a felony or as a misdemeanor. United States v. Denton, 611 F.3d 646, 651 (9th Cir. 2010). If, according to California law, a person who was convicted of violating the wobbler statute is deemed to have been convicted of a felony rather than a misdemeanor, then the person has been convicted of a felony for purposes of section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines. See, e.g., United States v. Diaz-Argueta, 564 F.3d 1047, 1049-50 (9th Cir. 2009). Section 17(b)1 of the California Penal Code determines whether a conviction for violating a wobbler is a misdemeanor or a felony. See United States v. Bridgeforth, 441 F.3d 864, 870-72 (9th Cir. 2006); People v. Perez, 45 Cal.Rptr.2d 107, 112 (Cal.Ct.App. 1995).

Soto-Lara's prior conviction does not qualify as a misdemeanor under § 17(b)(1). Soto-Lara...

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