                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 09 2011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. 10-50580

              Plaintiff - Appellee,              D.C. No. 3:05-cr-01927-JAH-1

  v.
                                                 MEMORANDUM *
JUAN RAMIREZ, Jr.,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                     Argued and Submitted November 30, 2011
                             San Francisco, California

Before: THOMAS and CLIFTON, Circuit Judges, and CARR, Senior District
Judge.**

       Juan Ramirez appeals the district court’s sentence of imprisonment upon

revocation of a supervised release. We affirm. Because the parties are familiar

with the factual and procedural history of the case, we need not recount it here.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **    The Honorable James G. Carr, Senior District Judge for the Northern
District of Ohio, sitting by designation.
                                           I

      To analyze Ramirez’s claim that the district court committed procedural

error in imposing his 21-month sentence, we employ a two-part review. United

States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008). First, we “ensure that the

district court committed no significant procedural error, such as failing to calculate

(or improperly calculating) the Guidelines range.” Gall v. United States, 552 U.S.

38, 51 (2007). If we determine that a sentence resulted from an incorrect

application of the Sentencing Guidelines, and that this incorrect application was

not harmless, we remand the sentence to the district court for further sentencing

proceedings. 18 U.S.C. § 3742(f)(1); see also United States v. Cantrell, 433 F.3d

1269, 1279 (9th Cir. 2006). If we find no procedural error, then we continue to

step two, considering “the substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard.” Grissom, 525 F.3d at 696. Sentences

imposed upon revocation of supervised release receive the same reasonableness

review. United States v. Simtob, 485 F.3d 1058, 1061 (9th Cir. 2007).

      Assuming, without deciding, that the district court committed procedural

sentencing error, we conclude that the error was harmless. After revoking

Ramirez’s supervised release, the district court imposed a 21-month prison

sentence on the basis of a Grade B violation. Under the Sentencing Guidelines, a


                                           2
“Grade B” violation is any conduct constituting an offense that is punishable by a

term of imprisonment exceeding one year, but not enumerated as a “Grade A”

violation. U.S.S.G. § 7B1.1(a)(2). Conversely, any conduct constituting an

offense punishable by up to one year imprisonment is a “Grade C” violation. §

7B1.1(a)(3). Here, Ramirez violated the terms of his supervised release when he

was twice convicted under California Health and Safety Code § 11377(a) for the

possession of a controlled substance. Because § 11377(a) is a “wobbler offense” –

punishable by a term in county jail up to one year or by a term in state prison

exceeding one year – the conviction record before the district court did not

categorically resolve whether Ramirez’s offenses constituted a Grade B or a Grade

C violation.

      A state court’s treatment of a wobbler offense controls a defendant’s

conviction status for the purposes of certain federal statutes. See, e.g., United

States v. Bridgeforth, 441 F.3d 864 (9th Cir. 2006); Ferreira v. Ashcroft, 382 F.3d

1045 (9th Cir. 2004). Under California law, wobbler offenses are treated as

“misdemeanor[s] for all purposes” when a state court judgment results in “a

punishment other than imprisonment in the state prison.” Cal. Penal Code §

17(b)(1); see also People v. Superior Court (Alvarez), 928 P.2d 1171, 1177-78

(Cal. 1997). Thus, it is arguable that Ramirez’s one-year jail sentence transformed


                                           3
his felony charge into a misdemeanor for the purpose of sentencing under the

Guidelines. See, e.g., Alvarez, 928 P.2d at 1177-78. However, we have also held

that an offense remains a felony for all purposes when, following a defendant’s

guilty plea, the district court “suspends the pronouncement of judgment or

imposition of a sentence and grants probation.” United States v. Diaz-Argueta, 564

F.3d 1047, 1049 (9th Cir. 2009).

      To provide additional information as to Ramirez’s conviction status, the

government made a motion to supplement the record on appeal. Generally, we

deny such motions to supplement the record on appeal. See Reina-Rodriguez v.

United States, 655 F.3d 1182, 1193 (9th Cir. 2011) (declining government’s

motion to consider material outside the district court record because facts subject to

reasonable dispute were presented for first time on appeal). However, in this

instance, defense counsel consented to consideration of the supplemental material.

Our consideration of the government’s documents is also in the interest of justice.

Ramirez is scheduled to be released in the next several months, and it is doubtful

that a remand would permit full consideration of the issue prior to his scheduled

release. Therefore, under these circumstances, the government’s motion is granted.

      The information provided in the supplemental material indicates that

Ramirez received a suspended sentence, bringing him within the rule of Diaz-


                                          4
Argueta. See 564 F.3d at 1049. Defense counsel points out that California state

courts may have a different interpretation of the effect of California law than the

interpretation given in Diaz-Argueta. See People v. Glee, 97 Cal. Rptr. 2d 847,

852 (Cal. Ct. App. 2000). However, Glee is not an intervening development in

case law. Thus, absent en banc review, Diaz-Argueta controls our decision. See

Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (en banc). Applying

Diaz-Argueta to the supplemented record, we conclude that any procedural error

made by the district court on the record before it was harmless.

                                          II

      In order to preserve the issue should a change in law arise, Ramirez also

asserts that the statutory provision, 18 U.S.C. § 3583(e)(3), under which the district

court revoked his supervised release and imposed a term of imprisonment is

unconstitutional. Defendant concedes, however, that this argument is foreclosed

under current law. United States v. Santana, 526 F.3d 1257, 1262 (9th Cir. 2008);

United States v. Huerta-Pimental, 445 F.3d 1220, 1224-25 (9th Cir. 2006), cert.

denied, 549 U.S. 1014 (2006).

      AFFIRMED.




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