                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 15 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50160

              Plaintiff - Appellee,              D.C. No. 2:11-cr-01190-DSF-1

  v.
                                                 MEMORANDUM*
JUVENTINO IBARRA GONZALEZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                             Submitted July 11, 2013**
                               Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

       Juventino Ibarra Gonzalez appeals from the district court’s judgment

sentencing him to 51 months in prison after he pleaded guilty to being an illegal


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
alien who was removed from, and subsequently found in, the United States in

violation of 8 U.S.C. § 1326. He argues that the court made two errors with

respect to the calculation of his criminal history, first by failing to treat two prior

sentences as a single sentence under U.S.S.G. § 4A1.2(a), and second by assessing

additional points under U.S.S.G. § 4A1.1(d) for committing his § 1326 offense

while he was on parole.

      The district court did not err in treating Gonzalez’s two prior sentences as

separate sentences and accordingly applying two three-point increases to his

criminal history. Under U.S.S.G. § 4A1.2(a), prior sentences should be counted

separately when there is no intervening arrest unless “(A) the sentences resulted

from offenses contained in the same charging instrument; or (B) the sentences were

imposed on the same day.” Gonzalez was sentenced for a marijuana possession

offense on May 23, 2008, and for a burglary offense on June 3, 2008, and the two

offenses were charged in different charging instruments. Thus, he does not fall

within the plain terms of the Guidelines provision. Gonzalez nonetheless contends

that it would be arbitrary not to treat the two sentences as one because the hearings

were originally scheduled for the same day and would have taken place on the

same day if not for the fact that they were scheduled to be held in different

courthouses. Given, however, that the two sentences were for completely


                                            2
unrelated offenses, which took place nearly two years apart, we do not think

U.S.S.G. § 4A1.2(a) was intended to encompass Gonzalez’s situation, and the

district court was therefore correct to apply the provision as written.

      The district court also did not err by assessing two criminal history points

for committing the present offense while on parole. Gonzalez does not dispute that

he was placed on parole when he was released from prison for the burglary offense

on March 31, 2011. Instead, he argues that his parole automatically terminated as

a matter of state law once he was deported from the United States on April 20,

2011. However, the California Department of Corrections and Rehabilitation

(CDCR) policy memorandum that Gonzalez cites in support of that argument states

only that a parolee who has been deported may be discharged following certain

procedures (as opposed to automatically), and Gonzalez provides no evidence that

he himself was ever so discharged. Moreover, the probation officer who prepared

Gonzalez’s presentence report learned from an inquiry to CDCR that Gonzalez was

on non-revocable parole until April 1, 2012, under California Penal Code section

3000.03. Thus, the district court correctly concluded that Gonzalez was on parole

at the time he violated § 1326.

      Gonzalez further contends that, if he was in fact on non-revocable parole at

the relevant time, that form of parole does not meet the requirements of a “criminal


                                           3
justice sentence” under U.S.S.G. § 4A1.1(d). The application notes for that

provision state that “a ‘criminal justice sentence’ means a sentence . . . having a

custodial or supervisory component, although active supervision is not required for

this subsection to apply.” U.S.S.G. § 4A1.1(d) cmt. n.4. Gonzalez does not

dispute that a person on non-revocable parole is subject at least to warrantless

searches by the police. As the district court correctly concluded, that condition

alone satisfies the requirement that the criminal justice sentence at issue have a

supervisory component. See id. (noting that a “term of unsupervised probation”

would fall within the definition of criminal justice sentence).

      AFFIRMED.




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