                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 13 2010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. 09-50589

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00373-MMM-1

  v.
                                                 MEMORANDUM *
GUILLERMO ARREDONDO BENITEZ,
AKA Guillermo Benitez,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                            Submitted October 4, 2010 **
                               Pasadena, California

Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.

       Guillermo Arredondo Benitez (“Arredondo Benitez”) appeals his sentence of

60 months imprisonment imposed by the federal district court for one count of




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
being an illegal alien found in the United States following deportation. We have

jurisdiction under 18 U.S.C. § 3732(a), and we affirm the district court.

      Arredondo Benitez contends that the district court erred in assigning him one

criminal history point under the U.S. Sentencing Guidelines for an unlicensed

driving conviction in California state court that resulted in 24 months of summary

probation. Because Arredondo Benitez did not raise this objection before the

district court, we review only for plain error. United States v. Guzman-Mata, 579

F.3d 1065, 1068 (9th Cir. 2009).

      Arredondo Benitez claims his term of probation should not count under the

Guidelines because, he asserts, his presentence report indicates the term was

suspended. This assertion is contradicted by the California Penal Code, which

makes clear that probation is a result of a suspended sentence, and not something

that is itself suspended. See Cal. Penal Code § 1203(a). Arredondo Benitez

contends that in United States v. Mejia, 559 F.3d 1113, 1115-16 (9th Cir. 2009),

this court interpreted a suspended sentence similar to his as describing a

suspension of summary probation. However, other statements in Mejia make clear

that the court saw suspension of the sentence (which eliminated all but 16 days of

the prison term) and termination of probation (which eliminated all but 3 days of




                                          2
probation) as two distinct acts. See id. Thus, the district court did not plainly err

in concluding Arredondo Benitez’s term of probation had not been suspended.

      Arredondo Benitez also argues summary probation does not count as

“probation” under the Guidelines because it lacks a supervisory or custodial

component. This argument is contradicted by our decision in United States v.

McCrudden, 894 F.2d 338, 339 (9th Cir. 1990), which states that “[t]he guidelines

make no provision for treating ‘unsupervised’ probation as less than probation.

Even if unsupervised, probation can be revoked and replaced by a sentence of

greater punishment if further offenses are committed during the probationary

period.” Thus, the district court did not plainly err in treating summary probation

as “probation” under the Guidelines.

             AFFIRMED.




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