                                                                               FILED
                           NOT FOR PUBLICATION                                  JUL 19 2010

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-10240

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00242-EJG-1

  v.
                                                 MEMORANDUM*
JIMMY SALCEDO, a.k.a. Jimmy Sanchez
Salcedo, a/k/a Jimmy Salcedo Salinas,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Edward J. Garcia, District Judge, Presiding

                       Argued and Submitted June 14, 2010
                            San Francisco, California

Before: O’SCANNLAIN, TASHIMA, BEA, Circuit Judges.

       Jimmy Salcedo appeals the calculation of his sentence following his guilty

plea, without a plea agreement, to illegal reentry of a previously deported alien, a

violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review de novo a district court’s determination that a prior conviction

may be used in calculating a defendant’s criminal history score. United States v.

Allen, 153 F.3d 1037, 1041 (9th Cir. 1998). If the district court incorrectly

calculates the advisory Sentencing Guidelines’ range, it is an error of law even

though those Guidelines are advisory. United States v. Carty, 520 F3.3d 984, 991,

993 (9th Cir. 2008) (en banc).

      In reviewing a lower court’s factual findings, we:

      determine whether the trial court’s application of the correct legal standard
      [to the facts] was (1) “illogical,” (2) “implausible,” or (3) without “support
      in inferences that may be drawn from the facts in the record.” If any of these
      three apply, only then are we able to have a “definite and firm conviction”
      that the district court reached a conclusion that was a “mistake” or was not
      among its “permissible” options, and thus that it abused its discretion by
      making a clearly erroneous finding of fact.

United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc) (citation

omitted).

      Salcedo pleaded guilty to the indictment, which charged that he was found

by immigration officers in the Sacramento County jail on March 10, 2008, where

he was serving a jail sentence for the state conviction of assault with a deadly

weapon with likelihood of great bodily injury. Salcedo has a lengthy history of

felony convictions for violent crimes.




                                          2
      He disputes the pre-sentence report’s assessment of three criminal history

category points for one of those crimes—a 1998 felony conviction for inflicting

corporal injury on a spouse or cohabitant. The district court correctly interpreted

the 1998 documents of conviction, which explicitly state that Salcedo’s sentence

was for a “TOTAL TERM 459 Days CJ [county jail].” The record further shows

that Salcedo agreed to a sentence of up to 16 months in state prison, which was

suspended so that he could receive his 459-day jail sentence and a grant of

probation. See United States v. Buzo-Zepeda, No. 09-50190, 2010 WL 2541256,

*2–*3 (9th Cir. June 25, 2010) (construing California’s waiver provision set forth

in People v. Johnson, 147 Cal. Rptr. 55 (Cal. Ct. App. 1978), and holding the

state’s characterization of the sentence does not affect the Guidelines’ calculation).

      Salcedo also challenges the pre-sentence report’s assessment of two criminal

history category points because he was discovered in the United States while he

was serving a sentence of imprisonment for another crime. The date Salcedo was

found by the immigration authorities is relevant because illegal reentry under 8

U.S.C. § 1326 is considered a continuing offense that is completed only upon “the

alien’s discovery by the immigration authorities.” United States v. Hernandez, 189

F.3d 785, 790 (9th Cir. 1999).




                                          3
      Salcedo contends the date the immigration authorities said they had found

him, March 10, 2008, was incorrect, and he had actually been found by

immigration authorities on October 23, 2007, six days before he was sentenced in

the state case. The district court did not abuse its discretion in finding that the

immigration authorities did not discover Salcedo until March 10, 2008. The record

shows that the indictment to which Salcedo pleaded guilty charged “the defendant

was found in the United States on March 10, 2008.” Although Salcedo claims a

probation officer sent the immigration authorities notice of his presence on October

23, 2007, there is no evidence in the record that the immigration authorities

actually received such notice.

      Next, Salcedo contends the government’s decision not to offer him a

“fast-track” disposition, where the government would move for a four-level

reduction in his offense level pursuant to U.S.S.G. § 5K3.1, created an unwarranted

sentencing disparity between his sentence and the sentences of other defendants

who are given this downward departure. We have already rejected this argument.

United States v. Gonzalez-Zotelo, 556 F.3d 736, 741 (9th Cir. 2009).

      Finally, Salcedo’s sentence is both procedurally and substantively

reasonable. The district court considered and correctly applied all the relevant

sentencing factors in 18 U.S.C. § 3553(a), which Salcedo does not challenge.


                                           4
      The district court imposed a 77-month sentence, which is at the bottom of

the applicable Sentencing Guidelines range. Considering Salcedo’s lengthy

criminal history, the sentence is quite lenient. Unlike the defendant in United

States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), Salcedo’s most serious

convictions are recent. He was last convicted in 2007 of assault with a deadly

weapon likely to cause great bodily injury, a crime of violence. He also has three

other convictions for domestic violence within the last fifteen years. After being

deported multiple times, Salcedo continues to return to the United States to commit

more crimes of violence.

      AFFIRMED.




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