U.S. v. Salazar–mojica

• Citation: 634 F.3d 1070
• Decision Date: 24 February 2011
• Docket Number: No. 09–50632.,09–50632.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Cesar Julio SALAZAR–MOJICA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

634 F.3d 1070

11 Cal. Daily Op. Serv. 2439

2011 Daily Journal D.A.R. 2981

UNITED STATES of America, Plaintiff–Appellee,

v.Cesar Julio SALAZAR–MOJICA, Defendant–Appellant.

No. 09–50632.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 2010.Filed Feb. 24, 2011.

Zandra L. Lopez, San Diego, CA, for the appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter, Chief, Appellate Section, Tara K. McGrath (briefed and argued), and Mark R. Rehe (briefed), Assistant United States Attorneys, San Diego, CA, for the appellee.Appeal from the United States District Court for the Southern District of California, Barry T. Moskowitz, District Judge, Presiding. D.C. No. 3:09–cr–00110–BTM–1.Before: HARRY PREGERSON and RICHARD R. CLIFTON, Circuit Judges, and H. RUSSEL HOLLAND, Senior District Judge.^*

OPINION

CLIFTON, Circuit Judge:

Cesar Julio Salazar–Mojica (“Salazar”) was convicted of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. In calculating Salazar's sentencing range under the now-advisory Sentencing Guidelines, the district court applied a 16–level sentencing enhancement on two independent grounds, one of which was that prior to his deportation Salazar had been convicted of a felony crime of violence. After his deportation and his arrest for his current offense, but before his conviction and sentencing, Salazar successfully moved in state court to reduce that previous conviction to a misdemeanor. Salazar thus argues that his previous conviction cannot be counted as a felony crime of violence because it was not a conviction for a felony. We conclude that the relevant time for determining whether a prior conviction was a felony for purposes of the enhancement is the time of the defendant's deportation. Because Salazar's conviction for a crime of violence was a felony conviction at the time of his deportation, application of the 16–level enhancement was appropriate, despite the subsequent reduction to a misdemeanor. Salazar also argues that the sentence imposed on him was too harsh and was substantively unreasonable, but we are not persuaded by that argument. We thus affirm the sentence imposed upon Salazar by the district court.

I. Background

In 1980 Salazar was convicted in California state court on a charge of assault by means of force and with a deadly weapon, in violation of California Penal Code § 245(a). Salazar was initially sentenced to probation for three years, with 43 days spent in jail as a condition of probation. After violating the terms of probation, however, Salazar was sentenced to three years in prison in 1982.

After serving that sentence, Salazar, who is a Mexican citizen, was deported from the United States. Indeed, Salazar has been deported several times, most recently on June 5, 2008.

A few weeks later, on July 25, 2008, the Border Patrol arrested Salazar after he was observed walking along an interstate highway approximately six miles north of the California—Mexico border. Slightly more than a year after that, on July 29, 2009, Salazar was convicted by jury trial of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. It is the sentence imposed upon Salazar for that conviction that is the subject of this appeal.

After his July 2008 arrest but before his July 2009 conviction, Salazar brought a motion in Los Angeles Superior Court to reduce his 1980 assault conviction to a misdemeanor, pursuant to California Penal Code § 17(b). The state court granted that motion on June 3, 2009.

Nonetheless, in sentencing Salazar, the district court treated the 1980 conviction as a felony conviction and concluded that the prior conviction warranted a 16–level enhancement of Salazar's offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii).¹ The guideline range calculated by the district court, based in part upon that enhancement, was 84 to 105 months. After consideration of the 18 U.S.C. § 3553(a) factors, the district court sentenced Salazar to incarceration for 66 months, a term substantially shorter than the calculated guideline range.

II. Discussion

Salazar appeals his sentence on two grounds. First, he objects to the district court's application of the 16–level sentencing enhancement in determining the advisory sentencing guideline range. Second, he contends that the imposed sentence of 66 months was substantively unreasonable.

We review de novo the district court's interpretation of the Sentencing Guidelines. United States v. Laurico–Yeno, 590 F.3d 818, 820 (9th Cir.2010). “The district court's application of the Guidelines to the facts of a particular case is reviewed for an abuse of discretion.” United States v. Rodriguez–Cruz, 255 F.3d 1054, 1058 (9th Cir.2001). Similarly, we review the substantive reasonableness of a sentence for abuse of discretion. United States v. Grissom, 525 F.3d 691, 696 (9th Cir.2008).

A. The 16–Level Enhancement

The Sentencing Guidelines provide that a 16–level enhancement should be added to a defendant's offense level if he has previously been deported after being convicted of a felony that falls into at least one of several categories, one of which is a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). We have previously held that assault by means of force and with a deadly weapon under California Penal Code § 245, the offense for which Salazar was convicted in 1980, is categorically a “crime of violence” for purposes of the 16–level enhancement. United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir.2009).

Salazar argues, however, that his assault conviction cannot be treated as a “felony” to support the enhancement because it was reduced by the state court from a felony to a misdemeanor in 2009. A violation of California Penal Code § 245 is sometimes called a “wobbler” offense because it may be treated and punished by the state court as either a felony or a misdemeanor. ² Cal.Penal Code §§ 17(b), 245(a)(1); see generally Ewing v. California, 538 U.S. 11, 16, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (discussing offenses that may be classified as either felonies or misdemeanors under California law). As noted above, the Los Angeles Superior Court reduced the conviction to a misdemeanor, pursuant to Cal.Penal Code § 17(b), on June 3, 2009.³

We are not persuaded that the state court's relabeling of the conviction in 2009 has any impact on the Guidelines calculation in this case. Salazar was most recently deported in 2008, before his assault conviction was reduced to a misdemeanor. U.S.S.G. § 2L1.2(b)(1) provides, in relevant part, that a 16–level enhancement should be applied “[i]f the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence.” The requirements of § 2L1.2(b)(1) were satisfied here. Salazar was deported after he was convicted in 1980 of a felony crime of violence, the § 245 assault.

At the time of his deportation, the § 245 conviction was properly viewed as a felony. “Under California law, a ‘wobbler’ is presumptively a felony and ‘remains a felony except when the discretion [of the trial court] is actually exercised’ to make the crime a misdemeanor.” Ewing, 538 U.S. at 16, 123 S.Ct. 1179 (quoting People v. Williams, 27 Cal.2d 220, 163 P.2d 692, 696 (1945)). The documents concerning the 1980 conviction include a Certificate of Magistrate from the Municipal Court of Los Angeles that stated in four places that Salazar pled guilty to a felony. On the Clerk's Report, the box for “misdemeanor” was not checked.⁴ Moreover, although he was initially sentenced to probation, that probation was revoked and he was then sentenced to three years for the § 245 conviction, effectively confirming that offense as a felony. See People v. Wood, 62 Cal.App.4th 1262, 1266–67, 73 Cal.Rptr.2d 308 (Cal.Ct.App.1998).

Several other circuits have held that changes in felony status subsequent to deportation are inapplicable for purposes of sentencing enhancements.⁵ For instance, the Eleventh Circuit held:

We are not persuaded ... that since [the defendant] successfully got [his] conviction vacated after illegally returning to the United States, the offense should not count for purposes of the § 2L1.2(b)(1)(A) enhancement. By its plain language [ (“If the defendant previously was deported ... after ... a conviction for a felony”) ], the Guidelines' relevant time period is the time of deportation, not the time of sentencing for an illegal reentry conviction.United States v. Orduno–Mireles, 405 F.3d 960, 961 n. 1 (11th Cir.2005).

We agree. There is no indication in the Guidelines that § 2L1.2(b)(1) is intended to entertain changes in felony status that occur after the deportation.⁶ We hold that the relevant time for evaluating a prior conviction for purposes of the U.S.S.G. § 2L1.2(b)(1)(A) enhancement is the time of deportation. We thus conclude that the district court's application of a 16–level sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) was appropriate.

B. Substantive Reasonableness of the Sentence

Salazar contends that his 66–month sentence, though substantially lower than the Sentencing Guidelines range of 84–105 months, was substantively unreasonable. We do not agree.

The district court did not abuse its discretion when weighing the totality of the circumstances and the 18 U.S.C. § 3553 factors. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Salazar primarily argues that the district court erred by not accounting for the fact that his prior criminal conduct occurred years before the instant offense. The record indicates otherwise. The court properly balanced the relative age of the prior convictions with the fact that Salazar had been deported multiple times, had essentially flouted immigration laws, and had engaged in illegal conduct while in the country. The record clearly shows that the district court did consider the age of...