                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 27 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50558

                   Plaintiff - Appellee,         D.C. No. 2:12-cr-00524-CAS-1

              v.                                 MEMORANDUM*

JOSE LUIS CRUZ-PALACIOS,

                   Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                           Submitted November 8, 2013**
                               Pasadena, California

Before: FISHER and CLIFTON, Circuit Judges, and SINGLETON, Senior
District Judge.***




        *
             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).
        ***
             The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
      Jose Luis Cruz-Palacios appeals a 24-month sentence imposed by the district

court after Cruz pled guilty to one count of being an illegal alien found in the

United States after deportation in violation of 8 U.S.C.§ 1326(a), (b)(2). Cruz

makes a single argument that the district court erred in assigning to Cruz’s earlier

conviction two criminal history points under United States Sentencing Guidelines

(“U.S.S.G.”) § 4A1.1(b) rather than one criminal history point under U.S.S.G. §

4A1.1(c). Cruz received a sentence of 180 days’ imprisonment which clearly

qualifies for the two points under U.S.S.G. § 4A1.1(b). See U.S.S.G. §

4A1.2(b)(1) (“The term ‘sentence of imprisonment’ means a sentence of

incarceration and refers to the maximum sentence imposed.”). The district court

concluded that Cruz had served at least two days in custody on the offense and was

thus properly subject to two points. See id. § 4A1.2 cmt. n.2 (“To qualify as a

sentence of imprisonment, the defendant must have actually served a period of

imprisonment on such sentence . . . .”).

      Cruz argues on appeal that, because he spent only two pre-trial days in

custody prior to conversion, he did not actually serve a period of imprisonment, as

required by § 4A1.1(b). Cruz also argues that his prior sentence of imprisonment

was converted to 52 days of weekend community service, which standing alone

would only qualify for one point. See U.S.S.G. § 4A1.2 cmt. n.4 (“A sentence


                                           2
which specifies a fine or other non-incarcerative disposition as an alternative to a

term of imprisonment . . . is treated as a non-imprisonment sentence.”). As the

government notes in its opposition, however, Cruz’s Criminal Case Report

indicates that, in addition to the two pre-trial days, Cruz served approximately two

weeks in custody after his bail bond was exonerated and before his motion to

participate in the Riverside County Sheriff’s Office weekend program was heard

and granted. Cruz has not replied or otherwise attempted to correct any

inaccuracies in the record. We therefore decline to address Cruz’s argument that

time in pre-sentencing custody cannot count as a “sentence of imprisonment”

under §§ 4A1.1 and 4A1.2(b)(1) because the two weeks he later spent in custody

plainly qualify as such, and we reject his argument that his sentence specified a

non-incarcerative alternative for the same reason.

      AFFIRMED.




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