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United States v. Perez-Hernandez
Citation: 49 F. App'x 189Docket: No. 01-10307; D.C. No. CR-00-00197-PMP
Court: Court of Appeals for the Ninth Circuit; October 24, 2002; Federal Appellate Court
Jose Guadalupe Perez-Hernandez appeals his sentence following a conviction for illegal re-entry under 8 U.S.C. § 1326(a). The court affirms the judgment and sentence but remands the case to remove the reference to § 1326(b) from the judgment order. Perez contends that his prior Nevada armed robbery conviction, which involved a suspended sentence, does not fulfill the “one-year term of imprisonment” requirement of 8 U.S.C. § 1101(a)(43)(F), and argues that the district court incorrectly enhanced his offense level by sixteen for this aggravated felony. The court rejects this argument, citing precedent from United States v. Echavarria-Escobar. Additionally, Perez raises an equal protection challenge regarding the sentencing enhancement, claiming that Nevada's unique sentencing procedures disadvantage him compared to other states that may impose straight probation. The court finds no evidence that similarly situated defendants in other jurisdictions would not receive similar sentences, leading to the rejection of his equal protection claim. The court also upholds the assessment of three additional criminal history points for the recency of prior misconduct. According to Sentencing Guidelines § 4A1.1(d) and (e), additional points are warranted if the defendant illegally re-enters during a probationary period or within two years of release from a prior sentence. Although Perez admits to re-entering the U.S. during this period, he argues that his subsequent re-entry in 1999 initiated a new § 1326 violation. However, the court finds that his ongoing ties to the U.S. after his 1995 re-entry indicate that his presence was relevant to his current violation, justifying the additional criminal history points. The court remands the case with instructions for the district court to issue a corrected judgment of conviction without the reference to § 1326(b). The ruling is affirmed and remanded, and the disposition is not for publication.