United States v. De La Cruz-Ochoa

MEMORANDUM **

Juan de la Cruz-Ochoa appeals his sentence of seventy-nine months following his guilty plea to a single federal count for illegal reentry of a deported alien in violation of 8 U.S.C. § 1326 (a). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

Cruz-Ochoa contends that the sixteen-level increase pursuant to United States Sentencing Guidelines (“USSG”) section 2L1.2(b)(l) does not apply since he pleaded guilty to the two state law felonies in question before he was deported, but formal judgment was not entered for those convictions until after he was deported. In the district court, Cruz-Ochoa did not object to the Presentence Report (“PSR”) on which the district court relied for sentencing, nor did he object to the seventy-nine month sentence.

“We review de novo a district court’s interpretation and application of the Sentencing Guidelines.” United States v. Upshaw, 226 F.3d 1101, 1102 (9th Cir.2000). “Alleged sentencing errors are reviewed for plain error where the defendant has failed to object before the district court.” United States v. Randall, 162 F.3d 557, 561 (9th Cir.1998). Plain error requires an (1) error, (2) that is plain, and (3) that…