Appeal from the United States District Court for the Southern District of California D.C. No.3:09-cr-00110 Barry T. Moskowitz, District Judge, Presiding
The opinion of the court was delivered by: Clifton, Circuit Judge:
December 9, 2010-Pasadena, California
Before: Harry Pregerson and Richard R. Clifton, Circuit Judges, and H. Russel Holland, Senior District Judge.*fn1
Cesar Julio Salazar-Mojica ("Salazar") was convicted of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. In calculating Salazar's sentencing range under the now-advisory Sentencing Guidelines, the district court applied a 16-level sentencing enhancement on two independent grounds, one of which was that prior to his deportation Salazar had been convicted of a felony crime of violence. After his deportation and his arrest for his current offense, but before his conviction and sentencing, Salazar successfully moved in state court to reduce that previous conviction to a misdemeanor. Salazar thus argues that his previous conviction cannot be counted as a felony crime of violence because it was not a conviction for a felony. We conclude that the relevant time for determining whether a prior conviction was a felony for purposes of the enhancement is the time of the defendant's deportation. Because Salazar's conviction for a crime of violence was a felony conviction at the time of his deportation, application of the 16-level enhancement was appropriate, despite the subsequent reduction to a misdemeanor. Salazar also argues that the sentence imposed on him was too harsh and was substantively unreasonable, but we are not persuaded by that argument. We thus affirm the sentence imposed upon Salazar by the district court.
In 1980 Salazar was convicted in California state court on a charge of assault by means of force and with a deadly weapon, in violation of California Penal Code § 245(a). Salazar was initially sentenced to probation for three years, with 43 days spent in jail as a condition of probation. After violating the terms of probation, however, Salazar was sentenced to three years in prison in 1982.
After serving that sentence, Salazar, who is a Mexican citizen, was deported from the United States. Indeed, Salazar has been deported several times, most recently on June 5, 2008.
A few weeks later, on July 25, 2008, the Border Patrol arrested Salazar after he was observed walking along an interstate highway approximately six miles north of the California -Mexico border. Slightly more than a year after that, on July 29, 2009, Salazar was convicted by jury trial of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. It is the sentence imposed upon Salazar for that conviction that is the subject of this appeal.
After his July 2008 arrest but before his July 2009 conviction, Salazar brought a motion in Los Angeles Superior Court to reduce his 1980 assault conviction to a misdemeanor, pursuant to California Penal Code § ...