                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 18 2011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. 09-50261

              Plaintiff - Appellee,              D.C. No. 5:09-cr-00006-VAP-1

  v.
                                                 MEMORANDUM *
OSCAR ROMERO-RODRIGUEZ, AKA
Oscar Rodriguez-Romero,

              Defendant - Appellant.



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

                      Argued and Submitted February 9, 2011
                               Pasadena, California

Before: PREGERSON and WARDLAW, Circuit Judges, and ZOUHARY, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
      Oscar Romero-Rodriguez appeals his prison sentence of 46 months for

unlawful re-entry following removal in violation of 18 U.S.C. §§ 1326(a), (b)(2).

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1. In calculating Romero-Rodriguez’s criminal history category, the district

court correctly added two points each for his 1999 and 2005 state convictions.

Sentencing Guidelines § 4A1.1(b) permitted the district court to add two criminal

history points “for each prior sentence of imprisonment of at least 60 days” which

Romero-Rodriguez actually served. In each case, the Los Angeles County

Superior Court imposed a partially suspended sentence with a term of incarceration

of at least 60 days as a condition of probation. Romero-Rodriguez actually served

time in jail for both convictions. Therefore, pursuant to U.S.S.G. § 4A1.1(b), the

district court properly assigned two points for each conviction. See United States

v. Buzo-Zepeda, 609 F.3d 1024, 1026 (9th Cir. 2010); United States v. Mendoza-

Morales, 347 F.3d 772, 778 (9th Cir. 2003).

      2. The district court also added one point for a 2008 state conviction for

felony transportation of marijuana, to which Romero-Rodriguez pled nolo

contendre. This was correct, at the time. The 2008 case was dismissed without

entry of judgment, however, so the additional point is now improper. See United

States v. Guthrie, 931 F.2d 564, 572 (9th Cir. 1991). Nonetheless, this error is


                                          2
harmless because Romero-Rodriguez remains in the same criminal history

category of V, placing him within the same guidelines sentencing range of 46 to 57

months. See U.S.S.G § 5A. The district court thoroughly considered the 18 U.S.C.

§ 3553(a) factors and sentenced Romero-Rodriguez to 46 months, the lowest end

of the range. Therefore, even without the 2008 conviction, these same § 3553(a)

factors would apply and the district court would have imposed the same sentence.

See Williams v. United States, 503 U.S. 193, 203 (1992); United States v. Cruz-

Gramajo, 570 F.3d 1162, 1174 (9th Cir. 2009). Romero-Rodriguez has shown no

prejudice.

      3. Romero-Rodriguez failed to show a likelihood that his sentence would

have changed had his trial counsel objected to the calculation of his criminal

history points, and therefore there is not a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).

      AFFIRMED.




                                           3
