United States v. Ascencion Hernandez-Perez

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2010
• Docket: 08-50321
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 27 2010

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 08-50321

Plaintiff - Appellee, D.C. No. 2:08-cr-00014-RGK-1

v. MEMORANDUM * ASCENSION HERNANDEZ-PEREZ, AKA Jose Asuncion Hernandez, AKA Jose Ascencion Hernandez,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted June 10, 2010 Pasadena, California

Before: KOZINSKI, Chief Judge, RAWLINSON, Circuit Judge, and BENNETT, District Judge.**

Ascension Hernandez-Perez failed to show any prejudice from the district

court’s failure to comply with Federal Rules of Criminal Procedure Rule

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Mark W. Bennett, U.S. District Judge for the Northern District of Iowa, sitting by designation. 32(i)(1)(A). See United States v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir.

1994). Therefore, any error was harmless. See United States v. Soltero, 510 F.3d

858, 863 (9th Cir. 2007).

The district court’s addition of the two § 4A1.1(d) points brought his total

criminal history from ten to twelve, but did not change his criminal history

category of V, and thus resulted in the same Guidelines sentencing range. See

U.S.S.G. Ch. 5, Pt. A. Because this was a “fast track” plea agreement, any error

was harmless. See United States v. Cruz-Gramajo, 570 F.3d 1162, 1166 n.3 (9th

Cir. 2009).

AFFIRMED.