                                                                               FILED
                            NOT FOR PUBLICATION                                 MAR 13 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-50593

              Plaintiff - Appellee,               D.C. No. 8:12-cr-00129-JVS-2

  v.
                                                  MEMORANDUM*
EVERARDO MENDOZA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                       Argued and Submitted March 6, 2015
                              Pasadena, California

Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.

       Everardo Mendoza appeals the sentence imposed following his plea of guilty

to a violation of 21 U.S.C. § 846, alleging that the district court erred by assigning

him two criminal history points under U.S.S.G. § 4A1.1(d) and that he is



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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accordingly eligible for safety-valve relief under U.S.S.G. § 2D1.1(b)(17). The

district court’s interpretation of the Sentencing Guidelines is reviewed de novo, but

the application of the Guidelines to the facts is reviewed for abuse of discretion,

and factual findings are reviewed for clear error. United States v. Alba-Flores, 577

F.3d 1104, 1107 (9th Cir. 2009). “The district court’s assessment of prior

convictions in calculating a defendant’s criminal history category is reviewed de

novo.” United States v. Franco-Flores, 558 F.3d 978, 980 (9th Cir. 2009).

      Mendoza’s sole argument for relief is that “[s]entences resulting from

convictions that (A) have been reversed or vacated because of errors of law or

because of subsequently discovered evidence exonerating the defendant, or (B)

have been ruled constitutionally invalid . . . are not to be counted.” U.S.S.G.

§ 4A1.2 cmt. n.6. However, Mendoza was under a diversionary disposition at the

time he committed the instant offense, see U.S.S.G. § 4A1.2(f), and he failed to

adduce any evidence supporting his contention that the diversionary disposition

was subsequently reversed or vacated for one of the reasons specified above.

Accordingly, the district court properly assessed two criminal history points under

U.S.S.G. § 4A1.1(d), rendering Mendoza ineligible for safety-valve relief under

U.S.S.G. § 2D1.1(b)(17). See U.S.S.G. § 5C1.2(a)(1).

      AFFIRMED.

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