United States v. Perez-Morales

Ninth Circuit

United States v. Perez-Morales

287 F. App'x 605

Procedural entryThis page is a short order in United States v. Perez-Morales. Read the opinion of the Court — 221 F. App'x 545 →

Court of Appeals for the Ninth Circuit·Decided July 28, 2008·No. No. 06-30310·Published

Opinion

SUPPLEMENTAL MEMORANDUM ***

The facts and procedure of the case are known to the parties, and we do not i'epeat them here. Arturo Perez-Morales raised several challenges to his conviction and sentence. We previously ruled on all but one of these challenges. See United States v. Perez-Morales, 221 Fed.Appx. 545 (9th Cir.2007). We deferred ruling on Perez-Morales’ sentencing challenge pending resolution of Claiborne v. United States, — U.S. —, 127 S.Ct. 2245, 167 L.Ed.2d 1080 (2007) (mem.), and Rita v. United States, — U.S. —, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Perez-Morales, 221 Fed.Appx. at 546. For the reasons set forth below, we now affirm the sentence of the district court.

We will only set aside a sentence when it is procedurally erroneous or substantively unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Perez-Morales argues that the district court erroneously treated the Guidelines as presumptively correct instead of advisory. See Carty, 520 F.3d at 993. We disagree. After calculating Perez-Morales’ sentence under the Guidelines, the district court stated that the Guidelines are “just an advisory range, and only taken as one factor among many that I should consider under [18 U.S.C.] § 3553.” The district court then considered the mitigating factors presented by Perez-Morales and tailored his sentence to his individual crime and his individual characteristics. See id. at 994.

Perez-Morales also argues that the district court improperly “double-counted” his prior drug trafficking conviction to enhance his criminal history score and to raise the guideline offense level. We disagree. Sentencing courts are permitted to use a defendant’s prior felony conviction as the basis for an increase and in calculating a defendant’s criminal history score. See United States v. Luna-Herrera, 149 F.3d 1054, 1056 (9th Cir.1998).

For the foregoing reasons, we AFFIRM the sentence of the district court.

Footnotes

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SUPPLEMENTAL MEMORANDUM ***

The facts and procedure of the case are known to the parties, and we do not i'epeat them here. Arturo Perez-Morales raised several challenges to his conviction and sentence. We previously ruled on all but one of these challenges. See United States v. Perez-Morales, 221 Fed.Appx. 545 (9th Cir.2007). We deferred ruling on Perez-Morales’ sentencing challenge pending resolution of Claiborne v. United States, — U.S. —, 127 S.Ct. 2245, 167 L.Ed.2d 1080 (2007) (mem.), and Rita v. United States, — U.S. —, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Perez-Morales, 221 Fed.Appx. at 546. For the reasons set forth below, we now affirm the sentence of the district court.

We will only set aside a sentence when it is procedurally erroneous or substantively unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Perez-Morales argues that the district court erroneously treated the Guidelines as presumptively correct instead of advisory. See Carty, 520 F.3d at 993. We disagree. After calculating Perez-Morales’ sentence under the Guidelines, the district court stated that the Guidelines are “just an advisory range, and only taken as one factor among many that I should consider under [18 U.S.C.] § 3553.” The district court then considered the mitigating factors presented by Perez-Morales and tailored his sentence to his individual crime and his individual characteristics. See id. at 994.

Perez-Morales also argues that the district court improperly “double-counted” his prior drug trafficking conviction to enhance his criminal history score and to raise the guideline offense level. We disagree. Sentencing courts are permitted to use a defendant’s prior felony conviction as the basis for an increase and in calculating a defendant’s criminal history score. See United States v. Luna-Herrera, 149 F.3d 1054, 1056 (9th Cir.1998).

For the foregoing reasons, we AFFIRM the sentence of the district court.

Footnotes

United States v. Perez-Morales, 287 F. App'x 605 (9th Cir. 2008).

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Opinion

Footnotes

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