NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ESEQUIEL DE JESUS GONZALEZ 

ORCINO, 

Defendant-Appellant. 

No. 15-50229

D.C. No. 

2:15-cr-00020-PA-1

MEMORANDUM *

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Submitted October 2, 2017 **

Pasadena, California

Before: M. SMITH and NGUYEN, Circuit Judges, and SETTLE, District 

Judge.

***

Esequiel de Jesus Gonzalez Orcino appeals his sentence following his guilty 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Benjamin H. Settle, District Judge for the U.S. District 

Court for the Western District of Washington, sitting by designation. 

FILED

OCT 4 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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plea to unlawful reentry under 8 U.S.C. § 1326(a). Specifically, he argues that the 

district court failed to properly calculate his criminal history points, thereby 

placing him in criminal history category IV instead of III. Because Gonzalez 

Orcino failed to preserve any of his arguments below, we review for plain error. 

See United States v. Guzman-Mata, 579 F.3d 1065, 1068 (9th Cir. 2009). 

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1. The district court properly assessed Gonzalez Orcino two criminal history 

points for committing the instant offense while on parole. See U.S.S.G. § 

4A1.1(d). Although a § 1326 violation is considered a “continuing offense[,] . . . 

the offense commences with the illegal entry.” United States v. Reyes-Pacheco, 

248 F.3d 942, 946 (9th Cir. 2001) (internal citations omitted). Gonzalez Orcino 

admitted to reentering the country without permission in February 2007 when he 

was on parole. Contrary to his arguments on appeal, the February 2007 

commission date has been reliably shown since Gonzalez Orcino admitted to this 

date at sentencing. 

2. The district court also properly assessed one criminal history point for 

Gonzalez Orcino’s 2003 conviction for violating California Penal Code § 422 

because it occurred “within ten years of the defendant’s commencement of the 

instant [illegal reentry] offense” in February 2007. U.S.S.G. § 4A1.2(e)(2)

(emphasis added). 
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3. The district court properly assessed one point for Gonzalez Orcino’s 2014 

drug possession offense. Gonzalez Orcino pled guilty to violating California 

Health and Safety Code § 11377 and was offered a drug diversion program. The 

record reflects that he failed to appear at a subsequent hearing but does not show 

that he was ever sentenced for this crime. The Sentencing Guidelines, however, do 

not require the imposition of a sentence for this offense to be counted under section 

4A1.1(c). U.S.S.G. § 4A1.2(a)(4). Moreover, even if he had successfully 

completed the diversion program, a “diversionary disposition resulting from a 

finding or admission of guilt . . . in a judicial proceeding” may also be considered 

under the Guidelines. U.S.S.G. § 4A1.2(f). 

AFFIRMED.