United States v. 2009-03-09 | 08-10101 | USA V. NICOLAS FRANCO-FLORES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 08-10101
Plaintiff-Appellee, D.C. No.
v. 3:06-CR-00144- 
NICOLAS FRANCO-FLORES, AKA LRH
Nico, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
February 11, 2009—Stanford, California
Filed March 9, 2009
Before: Dorothy W. Nelson, William A. Fletcher and
Richard C. Tallman, Circuit Judges.
Opinion by Judge D.W. Nelson
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COUNSEL
Michael K. Powell and Dan C. Maloney, Federal Public
Defender’s Office for the District of Nevada, Reno, Nevada,
for the defendant-appellant.
Elizabeth A. Olson, Assistant United States Attorney, United
States Attorney’s Office for the District of Nevada, Reno,
Nevada, for the plaintiff-appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Appellant Nicholas Franco-Flores appeals the district
court’s assessment of prior convictions in calculating his
criminal history category.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm the district court’s ruling.
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FACTUAL AND PROCEDURAL BACKGROUND
On September 26, 2006, the grand jury for the U.S. District
Court for the District of Nevada returned an indictment charg-
ing Nicolas Franco-Flores with two counts of being an Illegal
Alien in Possession of a Firearm, 18 U.S.C. §§ 922(g)(5),
924(a)(2) (“Counts 1 and 2”), two counts of Distribution of a
Controlled Substance - Methamphetamine, 21 U.S.C.
§ 841(a)(1) (“Counts 3 and 4”), and one count seeking forfei-
ture of arms, 18 U.S.C. §§ 922(g)(1), 924(d) (“Count 5”). Pur-
suant to a plea agreement, Franco-Flores entered a plea of
guilty to Counts 1 and 4. Counts 2 and 3 were dismissed and
the firearms were forfeited.
According to the presentence report (“PSR”), in February
2003, prior to his federal charges, Franco-Flores pleaded
guilty to a charge of Possession of a Controlled Substance in
the Second Judicial District Court of Washoe County, Reno,
Nevada (the “state court offense”), and was remanded to state
drug court. The state court judge informed Franco-Flores that
if he completed the state drug court program, the felony
would be “wiped off . . . [his] record,” but that if he did not,
he would be required to return to the state court for sentenc-
ing. Under the terms of the state drug court program, Franco-
Flores was monitored by, and required to make appearances
at, the drug court. When he did not complete the state drug
program, the state court issued a bench warrant for his arrest
in July 2003.
Pursuant to the United States Sentencing Guidelines Man-
ual (“U.S. Sentencing Guidelines”) sections 4A1.1(c) and
4A1.2(a)(4), the PSR added two criminal history points for
the state court offense. The PSR also added two criminal his-
tory points for the state court offense under U.S. Sentencing
Guidelines section 4A1.1(d). The two additional history
points raised Franco-Flores’ criminal history score from one
to three and his criminal history category from I to II. The
criminal history category, when combined with Franco-
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Flores’s offense level of 30, and taking into account the ten-
year statutory minimum sentence, yielded an advisory sen-
tence of 120-135 months’ imprisonment. It also rendered him
ineligible for a “safety-valve” reduction below the statutory
minimum.
At the time of sentencing, Franco-Flores objected to the
additional two points under U.S. Sentencing Guidelines sec-
tion 4A1.1(d). The district court rejected this argument, and
sentenced Franco-Flores to 120 months’ imprisonment. The
district court entered judgment on February 21, 2008, and
Franco-Flores timely appealed.
STANDARD OF REVIEW
This court reviews the “district court’s interpretation of the
Sentencing Guidelines de novo, the district court’s application
of the Sentencing Guidelines to the facts of [a] case for abuse
of discretion, and the district court’s factual findings for clear
error.” United States v. Alvarez-Hernandez, 478 F.3d 1060,
1063 (9th Cir. 2007) (quoting United States v. Cantrell, 433
F.3d 1269, 1279 (9th Cir. 2006)) (alteration in original). The
district court’s assessment of prior convictions in calculating
a defendant’s criminal history category is reviewed de novo.
United States v. Dominguez, 316 F.3d 1054, 1056 (9th Cir.
2003).
Because Franco-Flores objected to the district court’s cal-
culation of his sentence, he preserved the issue on appeal. See
United States v. Grissom, 525 F.3d 691, 694 (9th Cir. 2008).
A material error in the district court’s calculation of the
appropriate Guidelines range requires a remand for resentenc-
ing, unless the error was harmless. See Cantrell, 433 F.3d at
1280. “When, as here, the defendant has properly preserved
the sentencing error, the burden on demonstrating harmless-
ness falls on the Government.” United States v. Mejia-
Pimental, 477 F.3d 1100, 1109 (9th Cir. 2007).
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ANALYSIS
[1] Under U.S. Sentencing Guidelines section 4A1.1(d),
two additional criminal history points must be added “if the
defendant committed the instant offense while under any
criminal justice sentence, including probation, parole, super-
vised release, imprisonment, work release, or escape status.”
A “ ‘criminal justice sentence’ means a sentence countable
under § 4A1.2 . . . having a custodial or supervisory compo-
nent, although active supervision is not required for this item
to apply.” Id. § 4A1.1 cmt. n.4. Thus, “a term of unsupervised
probation would be included; but a sentence to pay a fine, by
itself, would not be included.” Id. Furthermore, “[a] defendant
who commits the instant offense while a violation warrant
from a prior sentence is outstanding . . . shall be deemed to
be under a criminal justice sentence for the purposes of this
provision if that sentence is otherwise countable . . . .” Id.
There is no dispute that Franco-Flores committed the fed-
eral offenses while subject to an outstanding drug court arrest
warrant for failing to comply with drug court requirements.
The only real dispute is whether his deferred sentence on the
original state court drug charge, to which he pleaded guilty,
contained a “custodial or supervisory component” such that
the state court disposition constituted a “criminal justice sen-
tence” under section 4A1.1(d).
Under section 458.300 of the Nevada Revised Statutes, a
“drug addict who has been convicted of a crime is eligible to
elect to be assigned by the court to a program of treatment for
the abuse of . . . drugs . . . before he is sentenced.” See also
id. § 458.320(3)(b) (permitting a judge offering treatment to
defer sentencing); id. § 458.330(1) (same). When offering
treatment, “[t]he court may impose any conditions upon the
election of treatment that could be imposed as conditions of
probation.” Id. § 458.310(2)(a). Furthermore, if the person
“elects to submit to treatment and is accepted, he may be
placed under the supervision of the [treatment] facility for a
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period of not less than 1 year nor more than 3 years.” Id.
§ 458.310(2)(b). “[I]f he does not satisfactorily complete the
treatment and satisfy the conditions, he may be sentenced and
the sentence executed.” Id. § 458.310(2)(d).
[2] Franco-Flores argues that no supervisory conditions
were imposed with respect to his drug treatment and therefore
he was not under a criminal justice sentence at the time of the
instant offense. The record suggests otherwise. Franco-
Flores’s state sentence was deferred with conditions.
Although he was not monitored by a probation officer, he was
monitored by the drug court, and he was required to make
court appearances and attend his drug treatment program
there. Indeed, if there were any doubts as to the existence of
conditions at the time of his federal arrest, there was an out-
standing bench warrant issued by the State of Nevada for fail-
ing to appear before the drug court.
[3] Furthermore, finding that Franco-Flores’s state court
offense qualifies him for section 4A1.1(d) comports with the
Sentencing Guidelines’ expressed purpose of increasing sen-
tences for repeat offenders. See United States v. Becker, 919
F.2d 568, 569 (9th Cir. 1990). “[D]efendants who receive the
benefit of a rehabilitative sentence and continue to commit
crimes should not be treated with further leniency.” U.S. Sen-
tencing Guidelines Manual § 4A1.2 cmt. n.9. Accordingly,
the district court did not err in determining that the state court
offense was a “criminal justice sentence” under section
4A1.1(d).
[4] Franco-Flores raises two other arguments that deserve
mention. First, he argues that the drug court’s oversight is nei-
ther custodial nor supervisory because section 458.340 of the
Nevada Revised Statutes deems such supervision civil in
nature. We find no requirement in the plain language of the
Sentencing Guidelines, however, that the custodial or supervi-
sory component be criminal in nature. See U.S. Sentencing
Guidelines Manual §§ 4A1.1(d), 4A1.1 cmt. n.4.
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[5] Second, citing United States v. Kipp, 10 F.3d 1463 (9th
Cir. 1993), Franco-Flores argues that the state court offense
cannot constitute a “criminal justice sentence” because he was
not on probation. Although the Kipp court held that “a sus-
pended sentence, standing alone without an accompanying
term of probation, is not a ‘criminal justice sentence,’ as that
term is used in § 4A1.1(d),” it did not hold that a suspended
sentence could never qualify as a “criminal justice sentence.”
Id. at 1467. In Kipp, no conditions whatsoever were imposed
on the defendant, including any probation-like components.
Id. This was central to the court’s conclusion that Kipp’s
deferred sentence had neither a custodial nor a supervisory
component. See id.; see also United States v. Gorman, 312
F.3d 1159, 1166 (10th Cir. 2002) (distinguishing Kipp
because defendant’s sentence was accompanied by a require-
ment that he maintain good behavior and refrain from violat-
ing the law). Thus, we make explicit what was implicit in
Kipp’s holding: a suspended sentence with a supervisory or
custodial component can constitute a “criminal justice sen-
tence” under section 4A1.1(d). Such a reading comports with
the language of section 4A1.1 cmt. n.4, as well as our sister
circuits’ interpretation of section 4A1.1(d). See, e.g., Gorman,
312 F.3d at 1166; United States v. Labella-Szuba, 92 F.3d
136, 138 (2d Cir. 1996); United States v. Miller, 56 F.3d 719,
721-22 (6th Cir. 1995).
CONCLUSION
For the foregoing reasons, the district court’s judgment is
affirmed.
AFFIRMED
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