                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 20 2011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. 10-50201

              Plaintiff - Appellee,               D.C. No. 3:09-cr-02808-GT-1

  v.
                                                  MEMORANDUM *
JOSE HERNANDEZ-CONTRERAS,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                Gordon Thompson, Senior District Judge, Presiding

                         Argued and Submitted May 6, 2011
                               Pasadena, California

Before: NOONAN and PAEZ, Circuit Judges, and KORMAN, * District Judge.                 *



       Jose Hernandez-Contreras, native and citizen of Mexico, appeals his

conviction and sentence after he pled guilty to illegal reentry after removal in




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, Brooklyn, sitting by
designation.
violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a), and we affirm.

      The government cited Ninth Circuit authority establishing that California

Penal Code § 459 qualifies as an “aggravated felony” under 8 U.S.C.

§ 1101(a)(43)(F), thus calling for an eight-level increase in Hernandez’s base

offense level under U.S.S.G. § 2L1.2. Although the government had agreed to

recommend a lower four-level increase, the government’s legal argument was

consistent with the its “duty to ensure that the court has complete and accurate

information.” United States v. Maldonado, 215 F.3d 1046, 1052 (9th Cir. 2000).

Because the government consistently recommended the four-level increase agreed

to by the parties even though the facts called for a higher base offense level, the

government did not breach the plea agreement.

      The district court’s application of the eight-level enhancement was proper

because Hernandez’s first degree burglary conviction under California Penal Code

§ 459 categorically qualifies as an “aggravated felony.” See 8 U.S.C.

§ 1101(a)(43)(F) (defining as an aggravated felony a “crime of violence” as

defined in 18 U.S.C. § 16 for which the sentence of imprisonment is at least one

year); United States v. Becker, 919 F.2d 568, 571 (9th Cir. 1990) (holding that first

degree burglary under § 459 qualifies as a “crime of violence” under 18 U.S.C. §


                                           2
16(b)). Moreover, it is well established that the district court could impose a

sentencing enhancement based on the section 459 conviction even though it was

not alleged in the information or admitted by Hernandez. See Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000); United States v. Corona-Sanchez, 291 F.3d

1201, 1212 (9th Cir. 2002) (en banc) (holding that a presentence report may

establish the fact of a prior conviction where the defendant does not contest that he

was not convicted under the relevant statute), abrogated on other grounds by

U.S.S.G. § 2L1.2 cmt. n.5.

      The district court’s order overruling Hernandez’s objections to the

Presentence Report specifically addressed each of Hernandez’s arguments, and

therefore complied with the district court’s obligation to “rule on the dispute.”

Fed. R. Crim. P. 32(i)(3)(B). Although the order was filed after sentencing, the

court informed Hernandez of the order at sentencing, and Hernandez did not

request further explanation.

      Finally, Hernandez’s sentence is procedurally and substantively reasonable

because the district court correctly calculated Hernandez’s Guidelines range, it

discussed Hernandez’s personal and criminal history, it considered the 18 U.S.C.

§ 3553(a) factors, and it concluded that a high-end, 33-month sentence was

appropriate given the need for the sentence imposed to provide punishment and


                                           3
adequate deterrence. See United States v. Carty, 520 F.3d 984, 992–93 (9th Cir.

2008) (en banc).

      AFFIRMED




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