United States v. 2010-06-25 | 09-50190 | USA V. JESUS BUZO-ZEPEDA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-50190
v. D.C. No.
2:08-cr-01462-  JESUS BUZO-ZEPEDA, AKA Jesus VBF-1Sanchez-Esperanza, AKA Jesus
Geovani Buzo, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Argued and Submitted
February 3, 2010—Pasadena, California
Filed June 25, 2010
Before: Mary M. Schroeder, Raymond C. Fisher and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
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COUNSEL
Davina T. Chen, Deputy Federal Public Defender for the Cen-
tral District of California, argued the cause for the defendant-
appellant and filed the briefs. Sean K. Kennedy, Federal Pub-
lic Defender for the Central District of California, also was on
the briefs.
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Jennifer M. Resnik, Special Assistant United States Attorney,
argued the cause for the appellee and filed the briefs. George
S. Cardona, Acting United States Attorney for the Central
District of California, and Christine C. Ewell, Assistant
United States Attorney for the Central District of California,
also were on the briefs.
OPINION
N.R. SMITH, Circuit Judge:
We hold that a “Johnson waiver” in California state court
has no effect on the determination of whether a defendant
qualifies for a point increase under United States Sentencing
Guidelines Manual § 4A1.1, Criminal History Category. A
“Johnson waiver” is a unique California state court procedure,
wherein the defendant voluntarily forfeits the credit for time
already served in jail, so that the state sentencing court may
impose additional time in jail on the conviction (as opposed
to sending the defendant to prison) without violating Califor-
nia Penal Code section 19.2—which allows a maximum term
of confinement in county or city jail of no more than one year.
Guidelines § 4A1.1 requires that a defendant previously sen-
tenced to a term of imprisonment exceeding one year and one
month be assessed an additional three points to his criminal
history score. We conclude that whether or not a defendant
has “waived back time,” under a “Johnson waiver,” has no
relevance to the term of imprisonment calculation under
Guidelines § 4A1.1. Therefore, we affirm the sentence
imposed by the district court.
I. BACKGROUND
Jesus Buzo-Zepeda is a citizen of Mexico and an alien. In
July 2006, Buzo-Zepeda was convicted in California on a
state drug trafficking offense and sentenced to 270 days in
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county jail followed by three years’ formal probation. Follow-
ing his conviction, he was deported from the U.S. on two sep-
arate occasions: September 2006 and July 2007.
In May 2008, the Los Angeles Police Department arrested
Buzo-Zepeda for contempt of court for violating a permanent
gang injunction. At that time, Buzo-Zepeda was still on pro-
bation for the state drug trafficking conviction. The state court
revoked his probation and sentenced him to an additional term
of imprisonment of 194 days. In order that he might serve this
additional time in the county jail without contravening section
19.2, Buzo-Zepeda “waived back” his original time served,
asking the court to ignore the fact that he had already been
sentenced to 270 days in the county jail.
While Buzo-Zepeda was serving this additional sentence,
the federal prosecutor charged Buzo-Zepeda with being an
alien found in the United States following deportation, in vio-
lation of 8 U.S.C. § 1326. Buzo-Zepeda pleaded guilty to the
charge on January 9, 2009. At the sentencing hearing, the dis-
trict court found that Buzo-Zepeda was sentenced to more
than 13 months imprisonment for his California drug traffick-
ing charge. Buzo-Zepeda was, therefore, subject to a three
point increase pursuant to §§ 4A1.1(a) and 4A1.2(k) of the
Guidelines.
Buzo-Zepeda argued at sentencing, as he does now on
appeal, that he cannot be considered to have been sentenced
to more than 365 days imprisonment on his state court convic-
tion, as a matter of California law. The sentencing court enter-
tained argument on this point and ultimately rejected his
position.
II. ANALYSIS
We are presented here with a question of law: whether Cal-
ifornia’s statutory cap on jail sentences and subsequent Cali-
fornia case law, allowing for “waiver” of previous jail time
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served (in order to circumvent California’s cap on the amount
of time a defendant may spend in a city or county jail), affect
the federal criminal history calculation under Guidelines
§ 4A1.1. We review de novo questions of law regarding inter-
pretation of the Guidelines. United States v. Tankersley, 537
F.3d 1100, 1110 (9th Cir. 2008).
1. Before considering the “Johnson waiver” and its effect on
sentence calculations under the Guidelines, we must deter-
mine whether Buzo-Zepeda’s state term of imprisonment was
of sufficient length to qualify him for a three point increase
to his criminal history score, under Guidelines § 4A1.1. We
hold that it was, for the following reasons.
[1] Guidelines § 4A1.1 mandates the number of points to
be assessed for a defendant’s prior criminal convictions when
calculating his criminal history category. U.S. Sentencing
Guidelines Manual § 4A1.1. “The definitions and instructions
in § 4A1.2 govern the computation of the criminal history
points. Therefore, §§ 4A1.1 and 4A1.2 must be read togeth-
er.” Id. § 4A1.1 cmt. commentary. In Buzo-Zepeda’s case, if
the court found that he received a “sentence of imprisonment
exceeding one year and one month,” then Guidelines § 4A1.1
requires the court assess a three point increase to his criminal
history score. Id. § 4A1.1(a). However, he would only be sub-
ject to a two point increase “for each prior sentence of impris-
onment of at least sixty days not counted in (a).” Id.
§ 4A1.1(b).
[2] The term “sentence of imprisonment” refers to the
maximum unsuspended sentence of incarceration imposed.
U.S. Sentencing Guidelines Manual § 4A1.2(b). If the defen-
dant actually served a period of imprisonment on the sen-
tence, “criminal history points are based on the sentence
pronounced, not the length of time actually served.” Id.
§ 4A1.2 cmt. n.2; see United States v. Gonzales, 506 F.3d
940, 943 (9th Cir. 2007). In a case, such as here, where there
was an original term of imprisonment for an offense, and then
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a later term imposed upon revocation of probation, those two
terms are added together. U.S. Sentencing Guidelines Manual
§ 4A1.2(k)(1). That total term is used to compute the criminal
history points under § 4A1.1, and if the total exceeds thirteen
months, then a maximum of three points are to be assessed.
U.S. Sentencing Guidelines Manual § 4A1.2(k) & cmt. n.11.
[3] The district court did not err in assessing a three point
increase to Buzo-Zepeda’s criminal history score for his Cali-
fornia drug trafficking conviction. At the time of conviction,
Buzo-Zepeda was sentenced to a term of 270 days in jail.
Later, when his probation was revoked, he was sentenced to
194 days in jail. The district court properly added those terms
under United States Sentencing Guidelines Manual
§ 4A1.2(k). The sum of those sentences (464 days) is greater
than one year plus one month. Buzo-Zepeda was, therefore,
subject to a three point increase to his criminal history score,
pursuant to Guidelines § 4A1.1(a).
[4] 2. Having held that Buzo-Zepeda’s total sentence of
imprisonment subjects him to a three point increase under
Guidelines § 4A1.1, we now turn to the applicability of Cali-
fornia’s “Johnson waiver.” In People v. Johnson, 147 Cal.
Rptr. 55 (Ct. App. 1978), the California Court of Appeal cre-
ated a procedure wherein a sentencing court could circumvent
the statutory cap on the total amount of time a defendant
could be imprisoned in a county or city jail. California Penal
Code section 19.2 states: “In no case shall any person sen-
tenced to confinement in a county or city jail . . . be commit-
ted for a period in excess of one year . . . .” In Johnson, the
California Court of Appeal held that a proper interpretation of
this statute permits the defendant to “knowingly and intelli-
gently waive the [requirement that] all days of custody be
credited to his sentence.” 147 Cal. Rptr. at 58. See also Peo-
ple v. Arnold, 92 P.3d 335, 338-39 (Cal. 2004). Therefore, if
a defendant waived the days served in jail on the previous jail
sentence for that conviction, the court could sentence the
defendant to jail a second time for a term not exceeding the
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one year cap, without violating California Penal Code section
19.2 (a “Johnson waiver”). Arnold, 92 P.3d at 338-39.
[5] Buzo-Zepeda concedes that his combined sentence of
imprisonment exceeds the one year plus one month threshold
of Guidelines § 4A1.1. Instead, he argues that because the
term “sentence of imprisonment” refers to the “maximum sen-
tence imposed” and because the maximum jail sentence that
can be imposed in California is one year, he could not have
received a sentence of imprisonment greater than one year.
We are not persuaded by Buzo-Zepeda’s reliance upon Cali-
fornia’s characterization of the nature of the sentence. As we
held in United States v. Mendoza-Morales, “state judicial
characterizations of the purpose or nature of a sentence are
irrelevant in determining whether the sentence was a sentence
of imprisonment.” 347 F.3d 772, 774 (9th Cir. 2003). There-
fore, we hold that California’s sentencing cap, and subsequent
California judicial interpretation allowing for defendants and
judges to circumvent that cap, has no effect on criminal his-
tory calculation under the United States Sentencing Guide-
lines Manual.
III. CONCLUSION
Accordingly, we AFFIRM the sentence imposed by the
district court.
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