                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 25 2011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. 10-50508

              Plaintiff - Appellee,              D.C. No. 3:09-cr-04207-DMS-1

  v.
                                                 MEMORANDUM *
JUAN FRANCISCO-PEGUERO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                      Argued and Submitted October 13, 2011
                               Pasadena, California

Before: GOODWIN and WARDLAW, Circuit Judges, and SESSIONS, District
Judge.**

       Juan Francisco-Peguero (“Francisco”), a native and citizen of Mexico,

appeals the district court’s imposition of a seventy-month sentence, following his

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.

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conviction for illegal reentry after deportation under 8 U.S.C. § 1326. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

       1. The district court did not abuse its discretion in applying U.S.S.G.

§ 4A1.1(e), which adds one criminal history point when the offense of conviction

was committed within two years of the defendant’s release from imprisonment.

The district court sentenced Francisco on October 15, 2010 under the 2009 version

of § 4A1.1(e), which was not effectively repealed until November 1, 2010,

U.S.S.G. app. C. at 356 (2010). See 18 U.S.C. § 3553(a)(4)(A)(ii) (providing that

the sentencing court shall consider the guidelines that “are in effect on the date the

defendant is sentenced”). We have considered and rejected the argument that the

repeal of § 4A1.1(e) applies retroactively. See United States v. Ruiz-Apolonio, No.

10-50306, 2011 WL 4060803, at *7–8 (9th Cir. Sept 14, 2011).

       2. Although the district court erred in assigning Francisco an additional

criminal history point under § 4A1.1(e), Francisco failed to object at the time of

sentencing, so we review for plain error. See United States v. Burgum, 633 F.3d

810, 812 (9th Cir. 2011) (citing United States v. Evans-Martinez, 611 F.3d 635,

642 (9th Cir. 2010)). We may correct only “a plain forfeited error affecting

substantial rights if the error ‘seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.’” United States v. Olano, 507 U.S. 725, 736


                                             2
(1993). Here, even if the district court had not assigned the additional criminal

history point, Francisco would have remained in the same criminal history category

and thus received the same sentence. Therefore, because Francisco’s substantial

rights were not affected, the district court did not commit plain error.

       3. The district court did not err in assigning Francisco two additional

criminal history points under U.S.S.G. § 4A1.1(d) for having committed an offense

while under parole. Francisco was arrested for the instant offense while on parole

for his 2002 firearm felony—in fact, he was initially taken into state custody on the

basis of that parole violation—thus, his criminal history score was properly

increased by two points under § 4A1.1(d).

       4. The district court’s sixteen-level upward adjustment of Francisco’s

offense level for prior drug trafficking offenses pursuant to U.S.S.G. §

2L1.2(b)(1)(A)(i) was substantively reasonable. Because United States v.

Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), does not control here, the

district court did not plainly err.

       In Amezcua-Vasquez, we explicitly warned against applying our decision too

broadly, noting that “[t]he scope of our decision is limited . . . . We make no

pronouncement as to the reasonableness of a comparable sentence were Amezcua’s

conviction more recent, the sentence resulting from the prior conviction more


                                           3
severe or ‘the need . . . to protect the public from further crimes of the defendant’

otherwise greater.’” 567 F.3d at 1058 (quoting 18 U.S.C. § 3553(a)(2)(C)). Here,

Francisco’s prior drug convictions are significantly more recent – eleven and

thirteen years old, respectively, at the time of sentencing. And, unlike

Amezcua-Vasquez where there was no subsequent criminal history, Francisco has

multiple subsequent convictions for drug trafficking offenses as well as for a DUI

and firearm-related offense.

      5. The district court’s sentence was substantively reasonable under 18

U.S.C. § 3553(a). “The touchstone of ‘reasonableness’ is whether the record as a

whole reflects rational and meaningful consideration of the factors enumerated in

18 U.S.C. § 3553(a).” Ruiz-Apolonio, 2011 WL 4060803, at *2 (citations omitted).

Lengthy explanations of decisions, however, are not necessary if “the record makes

clear that the sentencing judge considered the evidence and arguments.” Rita v.

United States, 551 U.S. 338, 359 (2007).

      Here, the district court considered the § 3553(a) factors at the sentencing

hearing, discussing explicitly the applicable statutory factors, mitigating facts,

criminal history, and arguments of counsel. Ultimately, the district court imposed

a sentence of seventy months, a variance of thirty months below the low end of the

guidelines range and fourteen months below the government’s recommendation.


                                           4
      6. The record reflects, however, that the district court misapprehended the

law by failing to recognize that Francisco was eligible for a two-point reduction in

his offense level under U.S.S.G. § 3E1.1(a), despite exercising his right to proceed

to trial. § 3E1.1(a), cmt. n.2.1 Even “‘a defendant who contests his factual guilt

may . . . be entitled to the [§ 3E1.1] adjustment.’” United States v. Cortes, 299

F.3d 1030, 1038 (9th Cir. 2002) (quoting United States v. Mohrbacher, 182 F.3d

1041, 1042 (9th Cir. 1999)); see also United States v. Ochoa-Gaytan, 265 F.3d

837, 843 (9th Cir. 2001) (“[A] defendant’s choice to exercise the constitutional

right to trial . . . does not automatically make the defendant ineligible for the [§

3E1.1] adjustment”).

      Because the district court did not squarely rely on any other basis in the

record for denying Francisco the reduction, we vacate his sentence and remand to

the district court to consider Francisco’s eligibility for the reduction. See Cortes,

299 F.3d 1039 (remanding to allow district court to “fully explicate the issue in the

first instance” where unclear if district court relied on anything beyond the

defendant’s decision to go to trial in denying the §3E1.1 adjustment).


      1
         Although the Guidelines enumerate two situations in which this is
particularly true—where a defendant goes to trial “to make a constitutional
challenge to a statute or a challenge to the applicability of a statute to his conduct,”
§ 3E1.1(a), cmt. n.2—we have held that this list is not exhaustive. United States v.
Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002).

                                            5
     AFFIRM in part, REVERSE in part, VACATE and REMAND for

resentencing.




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