                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 13 2012

                                                                         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. 11-10116

              Plaintiff - Appellee,               D.C. No. 4:10-cr-02332-DCB

  v.
                                                  MEMORANDUM *
PEDRO SOTO-LARA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                      Argued and Submitted February 13, 2012
                             San Francisco, California

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

       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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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




                                           2                                     11-10116
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




      1
          Section 17(b) provides:

      When a crime is punishable, in the discretion of the court, either by
      imprisonment in the state prison or imprisonment in a county jail
      under the provisions of subdivision (h) of Section 1170, or by fine or
      imprisonment in the county jail, it is a misdemeanor for all purposes
      under the following circumstances:
      (1) After a judgment imposing a punishment other than imprisonment
      in the state prison or imprisonment in a county jail under the
      provisions of subdivision (h) of Section 1170.
      (2) When the court, upon committing the defendant to the Division of
      Juvenile Justice, designates the offense to be a misdemeanor.
      (3) When the court grants probation to a defendant without imposition
      of sentence and at the time of granting probation, or on application of
      the defendant or probation officer thereafter, the court declares the
      offense to be a misdemeanor.
      (4) When the prosecuting attorney files in a court having jurisdiction
      over misdemeanor offenses a complaint specifying that the offense is
      a misdemeanor, unless the defendant at the time of his or her
      arraignment or plea objects to the offense being made a misdemeanor,
      in which event the complaint shall be amended to charge the felony
      and the case shall proceed on the felony complaint.
      (5) When, at or before the preliminary examination or prior to filing
      an order pursuant to Section 872, the magistrate determines that the
      offense is a misdemeanor, in which event the case shall proceed as if
      the defendant had been arraigned on a misdemeanor complaint.

Cal. Penal Code § 17(b).

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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 contends that the state court sentenced him to a jail term for

his violation of § 273.5 and that this proves that he committed a misdemeanor

rather than a felony. However, the record shows that Soto-Lara was not sentenced

to a jail term. Instead, the state court suspended imposition of sentence, placed

him on probation, and ordered that he serve 150 days in county jail as a term of his

probation. It is well-settled that a suspension of the imposition of sentence does

not constitute a “judgment imposing a punishment” for purposes of § 17(b)(1),

even if the person is placed on probation and one of the terms of probation is

serving time in county jail. See Cal. Penal Code § 17(b)(1); People v. Esparza, 61

Cal. Rptr. 167, 169 (Cal. Ct. App. 1967); see also Diaz-Argueta, 564 F.3d at 1049;

United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992), abrogated in part on

other grounds as recognized in Ortega–Mendez v. Gonzales, 450 F.3d 1010, 1020

(9th Cir. 2006). In cases where the court suspends imposition of a sentence, the

wobbler conviction may become a misdemeanor under § 17(b)(1) only if the state

court subsequently imposes a misdemeanor sentence. See, e.g., Bridgeforth, 441

F.3d at 871-72. Because the record here shows that the state court suspended


                                          4                                      11-10116
imposition of Soto-Lara’s sentence and did not subsequently impose a sentence,

Soto-Lara’s conviction for violating § 273.5(a) does not qualify as a misdemeanor

under § 17(b)(1).

      The remainder of §17(b) also supports the conclusion that Soto-Lara’s prior

conviction is a felony. Section 17(b)(2) clearly does not apply here because Soto-

Lara was not committed to the Division of Juvenile Justice, which is a requirement

of that subsection. See Cal. Penal Code § 17(b)(2).

      In addition, § 17(b)(3) also does not provide any support for Soto-Lara’s

claim that his prior conviction was a misdemeanor. In order for a felony to become

a misdemeanor under § 17(b)(3), a court must not only grant probation to a

defendant without imposition of sentence, but must actually declare the offense to

be a misdemeanor. See Cal. Penal Code § 17(b)(3); Garcia-Lopez v. Ashcroft, 334

F.3d 840, 845 (9th Cir. 2003); Robinson, 967 F.2d at 293. When there is no

evidence in the record to show that the court declared the offense to be a

misdemeanor, § 17(b)(3) does not operate to turn a wobbler offense into a

misdemeanor. See Diaz-Argueta, 564 F.3d at 1050. Here, there is nothing in the

record showing that the court ever declared Soto-Lara’s offense to be a

misdemeanor. Accordingly, his violation of § 273.5(a) may not be considered a

misdemeanor under § 17(b)(3).


                                          5                                  11-10116
      Section 17(b)(4) requires that the prosecuting attorney file a complaint

specifying that the offense was misdemeanor. See Cal. Penal Code § 17(b)(4).

The complaint in Soto-Lara’s case specified that the offense was a felony, not a

misdemeanor. The minute order from the guilty plea hearing unequivocally shows

that he pled guilty to the felony charge listed in this complaint. In addition, the

“Advisement and Waiver of Rights for a Felony Guilty Plea,” signed by Soto-Lara

clearly indicates that Soto-Lara was pleading guilty to a felony charge.

Accordingly, Soto-Lara’s offense is not a misdemeanor under § 17(b)(4).

      In order for a wobbler offense to become a misdemeanor under § 17(b)(5), a

magistrate must determine, by the time of the preliminary examination, that the

offense is a misdemeanor. See Cal. Penal Code § 17(b)(5). Here, nothing in the

record shows that this ever happened.

      Thus, under § 17(b), Soto-Lara’s prior conviction is a felony, not a

misdemeanor.

      Nevertheless, Soto-Lara argues that his prior conviction must be treated as a

misdemeanor because the terms and conditions of his probation prohibited him

from possessing firearms for a length of time associated with a misdemeanor.

However, the terms and conditions of Soto-Lara’s probation are not relevant under




                                           6                                     11-10116
§ 17(b), and we rejected a similar argument in Diaz-Argueta. See 564 F.3d at

1050.

        Finally, Soto-Lara argues that the “Warning To Alien Ordered Removed or

Deported,” which was provided to him at the time he was deported, provides

evidence supporting his argument that his prior conviction was not a felony. In

support of this argument, he notes that this document does not contain a check in

the box indicating that the alien has been convicted of an aggravated felony. Soto-

Lara again fails to explain how this document is relevant under section 17(b).

Moreover, a prior conviction may qualify as a felony crime of violence under §

2L1.2(b)(1)(A) even if the prior conviction is not an aggravated felony. See Diaz-

Argueta, 564 F.3d at 1050; see also United States v. Pimentel-Flores, 339 F.3d

959, 963-64 (9th Cir. 2003).

        Thus, the district court did not err when it determined that Soto-Lara’s prior

conviction was a felony and enhanced the offense level.

        AFFIRMED.




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