     Case: 12-30075     Document: 00511980413         Page: 1     Date Filed: 09/10/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 10, 2012
                                     No. 12-30075
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ANDRES PEREZ-BUSTILLO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CR-215-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
        Andres     Perez-Bustillo      challenges      his   sentence      of   46-months’
imprisonment, following his guilty-plea conviction for illegal reentry into the
United States.        He challenges only the procedural reasonableness of his
sentence, contending: the district court incorrectly determined that his prior
conviction for assault with a firearm, in violation of California Penal Code §
245(a)(2), was a felony conviction, warranting a 12-level enhancement under



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 12-30075   Document: 00511980413      Page: 2    Date Filed: 09/10/2012

                                  No. 12-30075

Guideline § 2L1.2(b)(1)(A)(ii); and, consequently, his sentence is an unreasonable
upward variance.
      Although, post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the advisory
Guideline-sentencing range for use in deciding on the sentence to impose. Gall
v. United States, 552 U.S. 38, 51 (2007). In that respect, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). As noted,
Perez challenges only the procedural reasonableness of his sentence.
      As the parties acknowledge, in California          § 245(a)(2) is termed a
“wobbler”; punishment under the statute may be either as a felony or
misdemeanor. United States v. Diaz-Argueta, 564 F.3d 1047, 1049 (9th Cir.
2009). “If, according to California law, a person who was convicted of violating
[a] wobbler statute is deemed to have been convicted of a felony rather than a
misdemeanor, then the person has been convicted of a felony for purposes of [§]
2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.” United States v. Soto-Lara, ---
F. App’x ---, 2012 WL 823636, *1 (9th Cir. 13 Mar. 2012) (unpublished) (citing
Diaz-Argueta, 564 F.3d at 1049-50).
      “Under California law, a ‘wobbler’ is presumptively a felony and remains
a felony except when the discretion is actually exercised to make the crime a
misdemeanor.” Diaz-Argueta, 564 F.3d at 1049 (internal quotation marks and
citation omitted). Section 17(b) of the California Penal Code sets forth under
what circumstances a “wobbler” is considered a misdemeanor. Garcia-Lopez v.
Ashcroft, 334 F.3d 840, 844 (9th Cir. 2003).
      Perez contends that, because he received a sentence other than
imprisonment in the state prison–i.e., three years’ probation, with the first 365
days to be served in county jail–his conviction is a misdemeanor. The state
records evidencing Perez’ conviction do not, however, reflect either: a judgment

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                                  No. 12-30075

imposing a punishment other than imprisonment in a state prison, such that
California Penal Code § 17(b)(1) applies; or a designation of the offense as a
misdemeanor by the state court, such that § 17(b)(3) applies. Soto-Lara, 2012
WL 823636 at **1-2; see United States v. Robinson, 967 F.2d 287, 293 (9th Cir.
1992) (when California court imposes suspended sentence, judgment for
purposes of § 17(b)(1) is not entered), abrogated in part on other grounds by
Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1020 (9th Cir. 2006).
      Because the record reflects that the state court suspended imposition of
a sentence, imposed a three-year term of probation, and did not specifically
designate Perez’ conviction as a misdemeanor, his conviction under § 245(a)(2)
remained a felony under California law, notwithstanding Perez’ being ordered
to serve the first 365 days of probation in county jail. Soto-Lara, 2012 WL
823636 at **1. Accordingly, the district court did not err in determining that
Perez’ state-court conviction was a felony for purposes of Guideline
§ 2L1.2(b)(1)(A)(ii). See § 2L1.2, cmt. 2; see also Cal. Penal Code § 245(a)(2).
      Because the district court committed no procedural error in applying the
12-level enhancement, and the 46-month sentence imposed by the district court
falls within a properly-calculated advisory Guidelines-sentencing range, our
court need not reach Perez’ unreasonable-upward-variance contention.
      AFFIRMED.




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