United States v. Juan Francisco-Peguero

MEMORANDUM

Juan Francisco-Peguero (“Francisco”), a native and citizen of Mexico, appeals the district court’s imposition of a seventy-month sentence, following his conviction for illegal reentry after deportation under 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 .

1. The district court did not abuse its discretion in applying U.S.S.G. § 4A1.1(e), which adds one criminal history point when the offense of conviction was committed within two years of the defendant’s release from imprisonment. The district court sentenced Francisco on October 15, 2010 under the 2009 version of § 4A1.1(e), which was not effectively repealed until November 1, 2010, U.S.S.G. app. C. at 356 (2010). See 18 U.S.C. § 3553 (a)(4)(A)(ii) (providing that the sentencing court shall consider the guidelines that “are in effect on the date the defendant is sentenced”). We have considered and rejected the argument that the repeal of § 4A1.1(e) applies retroactively. See United States v. Ruiz-Apolonio, 657 F.3d 907, 916-18 (9th Cir.2011).

2. Although the district court erred in assigning Francisco an additional criminal history point under § 4A1.1(e), Francisco failed…