                                                                                      FILED
                               NOT FOR PUBLICATION                                     MAR 25 2011

                                                                                  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. 09-50402

                Plaintiff - Appellee,                   D.C. No. 2:09-cr-00241-R-1

   v.
                                                        MEMORANDUM *
 JUAN PABLO DELGADO, AKA Juan
 Pablo Salcedo-Delgado,

                Defendant - Appellant.



                       Appeal from the United States District Court
                          for the Central District of California
                        Manuel L. Real, District Judge, Presiding

                        Argued and Submitted November 4, 2010
                                 Pasadena, California

Before: RAWLINSON and M. SMITH, Circuit Judges, and JONES **, District
Judge.

        Juan Pablo Delgado appeals his conviction and 55-month sentence for illegal

reentry into the United States after deportation, 8 U.S.C. § 1326, and for being an


        *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        *
               The Honorable Robert C. Jones, United States District Judge for the District of
Nevada, sitting by designation.
alien or felon in possession of a firearm, 18 U.S.C. § 922(g)(1), (5)(A). On appeal,

Delgado argues that the district court: (a) erred in convicting him under §

1326(b)(2) in addition to § 1326(a); (b) abused its discretion in denying his motion

to continue the sentencing hearing so he could attempt to retain private counsel;

and (c) plainly erred in assessing two additional criminal history points under §

4A1.1(d) of the Sentencing Guidelines.

                                         I.

      We review whether the district court properly entered judgment pursuant to

both § 1326(a) and § 1326(b)(2) de novo. United States v. Rivera-Sanchez, 222

F.3d 1057, 1061 (9th Cir. 2000).

      Section 1326(a) defines the offense of illegal reentry and prescribes a

maximum two-year sentence of imprisonment. 8 U.S.C. § 1326(a). Section

1326(b)(2) is a sentencing-enhancement provision that increases the maximum

sentence under § 1326(a) to 20 years if the alien’s removal was subsequent to

conviction for an aggravated felony. 8 U.S.C. § 1326(b)(2); United States v.

Maria-Gonzalez, 268 F.3d 664, 671 (9th Cir. 2001).

      Here, the district court erred when it entered judgment against Delgado for a

conviction under “Title 8 USC 1326(a)(b)(2).” Because Delgado should have been

convicted under § 1326(a) only, we remand the case to the district court with


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instructions to amend the judgment to reflect a conviction under § 1326(a) only.

See Maria-Gonzalez, 268 F.3d at 671.

                                          II.

      We review a district court’s denial of a motion for continuance that arguably

implicates a defendant’s right to counsel for abuse of discretion. United States v.

Thompson, 587 F.3d 1165, 1171 (9th Cir. 2009).

      When exercising its discretion, the district court must consider the effect of

its decision on the right to counsel. United States v. Garrett, 179 F.3d 1143, 1147

(9th Cir. 1999 )(en banc). The court “must balance several factors to determine if

the denial was ‘fair and reasonable.’” Thompson, 587 F.3d at 1174 (quoting United

States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986)). These factors include: “[1]

whether the continuance would inconvenience witnesses, the court, counsel, or the

parties; [2] whether other continuances have been granted; [3] whether legitimate

reasons exist for the delay; [4] whether the delay is the defendant’s fault; and [5]

whether a denial would prejudice the defendant.” Id. When denying a continuance

that arguably implicates the Sixth Amendment right to counsel, “the district court

should summarize in the record its reasons for the denial.” Id. (quoting Garrett,

179 F.3d at 1147).




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         Here, the district court sufficiently summarized on the record its reasons for

denying the motion to continue the sentencing hearing. The district court stated

that Delgado’s request for time to retain private counsel was “too iffy” and noted

that defense counsel was prepared. Therefore, the district court did not abuse its

discretion in denying Delgado’s request to continue.

                                           III.

         Delgado disputes the assignment of two criminal history points under

U.S.S.G. § 4A1.1(d) because he was subject to an outstanding probation violation

warrant from California when he committed the instant offense. Because he did

not raise this issue below, plain error review applies. To establish plain error,

Delgado must show: (1) error; (2) that is plain; (3) that affects substantial rights;

and (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005)(en

banc).

         Section 4A1.1(d) adds two criminal history points “if the defendant

committed the instant offense while under any criminal justice sentence, including

probation, parole, supervised release, imprisonment, work release, or escape

status.” U.S.S.G. § 4A1.1(d).




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      For the purposes of § 4A1.1(d), a defendant who commits the instant
      offense while a violation warrant from a prior sentence is outstanding
      (e.g., a probation, parole, or supervised release violation warrant) shall
      be deemed to be under a criminal justice sentence if that sentence is
      otherwise countable, even if that sentence would have expired absent
      such warrant.

U.S.S.G. § 4A1.2(m). Generally, collateral attacks on prior state convictions or

sentences are not permitted in federal sentencing proceedings. United States v.

Saya, 247 F.3d 929, 940 (9th Cir. 2001); see also U.S.S.G. § 4A1.2, cmt. (n.6)

     Here, Delgado does not dispute the existence of an outstanding California

warrant at the time of the instant offense. Accordingly, we hold that the district did

not plainly err when it assessed two criminal history points under U.S.S.G.

§ 4A1.1(d).

                                         IV.

     Accordingly, we affirm Delgado’s conviction and sentence but remand with

instructions for the district court to amend the entry of judgment to eliminate

reference to conviction under 8 U.S.C. § 1326(b)(2).

     AFFIRMED and REMANDED.




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