                                                                             FILED
                     UNITED STATES COURT OF APPEALS                           AUG 12 2010

                                                                       MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                          U.S . CO UR T OF AP PE A LS




UNITED STATES OF AMERICA,                        No. 09-50153

              Plaintiff - Appellee,              D.C. No. 8:08-cr-00304-AG-1
                                                 Central District of California,
  v.                                             Santa Ana

MARCO ESTEBAN LUNA-DIAZ, AKA
Marco Luna Diaz,                                 ORDER

              Defendant - Appellant.



Before: NOONAN, CLIFTON and BYBEE, Circuit Judges.


       The memorandum disposition filed in this case on May 20, 2010 is hereby

WITHDRAWN.

       Appellant's petition for rehearing, filed May 27, 2010, is hereby

GRANTED.

       Appellee's petition for rehearing, filed June 9, 2010, is hereby GRANTED.

       No further petitions for rehearing will be accepted.
                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 12 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50153

              Plaintiff - Appellee,              D.C. No. 8:08-cr-00304-AG-1

  v.
                                                 MEMORANDUM *
MARCO ESTEBAN LUNA-DIAZ, AKA
Marco Luna Diaz,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                              Submitted May 7, 2010**
                                Pasadena, California

Before: NOONAN, CLIFTON and BYBEE, Circuit Judges.

       Marco Esteban Luna-Diaz ('Luna') argues that the district court improperly

assessed three criminal history points for his 1995 voluntary manslaughter

conviction. We disagree and affirm the judgment of the district court. Because

        *
             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).
Luna failed to object to the district court's calculation of his criminal history, we

review the district court's decision for plain error.

      Section 4A1.1(a) of the Sentencing Guidelines instructs a district court to

'[a]dd 3 points for each prior sentence of imprisonment exceeding one year and

one month.' Section 4A1.2(µ)(1), for its part, directs a district court to 'add the

original term of imprisonment to any term of imprisonment imposed upon

revocation [of probation, parole, supervised release, special parole, or mandatory

release] . . . to compute the criminal history points for y 4A1.1(a).' In accordance

with the Guidelines, the district court added Luna's original term of imprisonment

(ten months) to the term of imprisonment he received upon having his probation

revoµed (four months). Because fourteen months 'exceed[s] one year and one

month,' the district court added three criminal history points for Luna's voluntary

manslaughter conviction.

      Despite the district court's apparent adherence to the Guidelines' commands,

Luna argues that our decision in United States v. Gomez-Leon, 545 F.3d 777 (9th

Cir. 2008), requires us to conclude that the district court plainly erred. In Gomez-

Leon, we held that it was impossible to tell, under California's unusual sentencing




                                            2
frameworµ,1 whether Gomez-Leon's longer second sentence included, or was

separate from, his first sentence. Because the record was unclear on that point, and

because there was no evidence that Gomez-Leon had consented to a sentence

longer than one year, we held that it was improper for the district court to

conclude, under U.S.S.G. y 2L1.2(b)(1)(A), that Gomez-Leon had been convicted

of a drug trafficµing offense 'for which the sentence imposed exceeded 13

months.' 545 F.3d at 784-85.

      As was the case in Gomez-Leon, there is no evidence that Luna consented to

receiving a sentence longer than one year. But we are reviewing for plain error,

which is 'strictly circumscribed.' Pucµett v. United States, 129 S. Ct. 1423, 1428

(2009). Because we did not address Luna's particular sentencing scenario (where

the defendant's first sentence is longer than his second sentence) in Gomez-Leon,

we hold that the district court's calculation of Luna's criminal history did not

constitute plain error. See United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.


      1
         California law imposes a one-year cap on the length of time to be served in
a jail (as opposed to a prison) that a court may impose as a condition of probation.
Cal. Penal Code y 19.2. Thus, under y 19.2, if a defendant violates his probation
after having already served one year in jail, the trial court must either impose a
prison sentence (rather than a jail sentence) or provide 'a fatherly (or motherly)
lecture on the evils of crime.' State v. Johnson, 147 Cal. Rptr. 55, 57 (Ct. App.
1978). To avoid this 'Hobson's choice,' id. at 58, California courts created what is
µnown as a Johnson waiver, which allows California courts to impose time in jail
beyond y 19.2's one-year cap if the defendant consents.

                                           3
1997) ('Plain error . . . is error that is so clear-cut, so obvious, that a competent

district judge should be able to avoid it without benefit of objection.').

       Luna also argues that his conviction for being in possession of drug

paraphernalia should not have affected the district courtùs calculation of his

criminal history because he possessed the paraphernalia while in the process of

being in the United States illegally. This argument is foreclosed by United States v.

Cruz-Gramajo, 570 F.3d 1162 (9th Cir. 2009).

       AFFIRMED.




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