United States v. Jimenez-Velasco

211 F. App'x 653

Opinion

MEMORANDUM

**

Defendant Jesus Francisco Jimenez-Velasco pleaded guilty to being an alien found in the United States after having been deported, in violation of 8 U.S.C. § 1326. He appeals his sentence of 30 months’ imprisonment.

1. Defendant primarily argues that the district court erred in calculating his criminal history score under the U.S. Sentencing Guidelines (“U.S.S.G.”) when it added one point for a misdemeanor conviction, the sentence for which was entirely suspended. That calculation is consistent with United States v. Williams, 291 F.3d 1180 (9th Cir.2002). But Defendant argues that Williams was wrongly decided and is inconsistent with United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir.2005).

We need not decide the merits of this issue because any error was harmless. The misdemeanor conviction in question increased Defendant’s criminal history score from 5 to 6, but the criminal history category of III includes scores of 4, 5, and 6. U.S.S.G. ch. 5, pt. A, sentencing table. That is, even eliminating the disputed point, Defendant would have had the same criminal history score and the same advisory sentencing range.

2. Defendant’s challenges to the interpretation and application of 8 U.S.C. § 1326(b) are foreclosed by United States v. Velasquez-Reyes, 427 F.3d 1227 (9th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1182, 163 L.Ed.2d 1139 (2006), and United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir.2001).

AFFIRMED.

This disposition is not appropriate for publication ánd may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.