United States of America v. Miguel Kercherval

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Ronald B. Leighton, United States District Judge for***
the Western District of Washington, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIGUEL KERCHERVAL,
Defendant - Appellant.
No. 08-10544
D.C. No. 2:07-CR-00074-EJG-1
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, District Judge, Presiding
Submitted October 6, 2009**
San Francisco, California
Before: GOODWIN and PAEZ, Circuit Judges, and LEIGHTON, District***
Judge.
FILED
DEC 23 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Defendant Miguel Kercherval (“Defendant”) appeals the sentence imposed
in his criminal case. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Defendant asserts that the district court erred in using the 2007 version of the
Sentencing Guidelines because Defendant’s crimes occurred in 2006. Defendant
argues that using the 2007 Sentencing Guidelines violates the ex post facto clause
because Defendant’s 1997 convictions would have been considered related under
the 2006 Sentencing Guidelines, resulting in a reduced sentence. However,
Defendant is mistaken. The district court correctly determined that the crimes are
unrelated. Therefore, the district court correctly applied the 2007 Sentencing
Guidelines.
The district court likewise did not err in concluding that it was not bound by
a prior Nevada district court finding that Defendant’s 1997 convictions were
related. We find no caselaw suggesting that one district court’s factual findings at
sentencing restricts another district court’s discretion at a separate subsequent
sentencing. Thus, the district court was not bound to consider the 1997 convictions
as related offenses for determining career offender status, and we see no error in
the district court’s determination.
We agree with Defendant that his December 2007 robbery conviction should
not have been included in the career offender determination. However, his two

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1997 convictions were sufficient for the district court to determine that Defendant
is a career offender. Accordingly, the district court did not err in its determination.
Defendant next argues that the district court erred in imposing an upward
departure from the sentencing guidelines based on understated criminal history.
Upward departures are reviewed for reasonableness. United States v. Tankersley,
537 F.3d 1100, 1113–14 (9th Cir. 2008). Given Defendant’s extensive criminal
history, we see no error.
Finally, Defendant claims that his counsel was ineffective for failing to
request a downward departure for time spent in custody after his 2006 arrest.
Ineffective assistance of counsel claims are generally inappropriate on direct
appeal unless (1) the record is sufficiently developed to permit review and
determination of the issue, or (2) the legal representation is so inadequate that it
obviously denies a defendant his Sixth Amendment right to counsel. United States
v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003). As neither exception applies here,
we need not address this claim.
AFFIRMED.

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