                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 14 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-50157

              Plaintiff-Appellee,                D.C. No. 16-cr-02836-LAB

 v.
                                                 MEMORANDUM*
PEDRO ANAYA-GRANADOS,

              Defendant-Appellant.


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

                          Submitted December 5, 2017**
                              Pasadena, California

Before: D.W. NELSON and REINHARDT, Circuit Judges, and STEEH,***
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable George Caram Steeh III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
      Appellant Pedro Anaya-Granados appeals his 18 month sentence for illegal

reentry. For the reasons stated below, we AFFIRM the district court.

      1. The California statute governing driving under the influence of alcohol

with three or more prior DUI convictions within the past 10 years is a wobbler.

People v. Martinez, 62 Cal. App. 4th 1454, 1463 (1998). Wobbler offenses may be

classified as either a felony or a misdemeanor. Ewing v. California, 538 U.S. 11,

16 (2003). They are presumptively felonies, however, and remain felonies unless

discretion is actually exercised to make the offense a misdemeanor. Id. Examples

of this discretion are listed in Cal. Penal Code § 17(b). Anaya-Granados argues that

his 2008 offense should be a misdemeanor under § 17(b)(1), which states that a

wobbler is a misdemeanor for all purposes “[a]fter a judgment imposing a

punishment other than imprisonment in the state prison.” Unfortunately for

Appellant, in California a suspended sentence and probation do not result in entry

of a judgment within the meaning of Cal. Penal Code § 17(b)(1). United States v.

Robinson, 967 F.2d 287, 293 (9th Cir. 1992), recognized as overruled on other

grounds by Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1018-20 (9th Cir. 2006).

Anaya-Granados’ 2008 offense is, therefore, properly classified as a felony. The




                                         2
district court correctly applied the four level enhancement provided by USSG §

2L1.2(b)(3)(D).

      2. A district court’s denial of a Fast Track Guideline reduction is not

reviewed for procedural reasonableness, but only as part of this Court’s review of

the substantive reasonableness of the sentence. United States v. Ellis, 641 F.3d 411,

421 (9th Cir. 2011). Although the district court did not grant Anaya-Granados a

Fast Track Guideline reduction, the 18-month sentence, at the low end of Anaya-

Granados’ guideline range, is reasonable given his deportation history and prior

convictions for illegal reentry and drunk driving.

      AFFIRMED1.




      1
          Appellee’s motion for judicial notice is DENIED AS MOOT.
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