Unpublished Disposition, 900 F.2d 263 (9th Cir. 1989)

MEMORANDUM^* 

Francisco Sanchez-Ortiz appeals the sentence imposed after his probation was revoked due to his criminal conviction for felony illegal entry and being a deported alien in the United States. He contends that the district court failed to exercise its discretion in ordering that the sentence run consecutively to his sentence for illegal entry and being a deported alien in the United States. We affirm.

On September 28, 1988, Sanchez-Ortiz pleaded guilty to one count of felony illegal entry in the United States in violation of 8 U.S.C. § 1325. The district court sentenced him to two years imprisonment, with all but 179 days suspended, and five years probation. He was released from custody on December 12, 1988, and was deported to Mexico.

On May 12, 1989, Sanchez was again convicted of felony illegal entry and of being a deported alien in the United States. He was sentenced to eighteen months imprisonment and one year supervised release (case no. CR-89-0139-B).

An order to show cause was issued why his probation should not be revoked due to his criminal conviction in CR-89-0139-B. Sanchez-Ortiz admitted the allegations in the order to show cause.

At the hearing on probation revocation, Sanchez-Ortiz argued that Section 5G1.3 of the Federal Sentencing Guidelines mandated that his sentence run concurrently with his sentence in CR-89-0139-B. The district court rejected Sanchez-Ortiz's interpretation of Sec. 5G1.3, revoked his probation, and sentenced him to two years imprisonment, with the sentence to run consecutively to his sentence in CR-89-0139-B.

On appeal, Sanchez-Ortiz contends that the district court failed to exercise its discretion in imposing a consecutive sentence because it erroneously believed that Sec. 5G1.3 mandated a consecutive sentence. We disagree.

At the time Sanchez-Ortiz was sentenced, Sec. 5G1.3 provided in relevant part:

If at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentences for the instant offense(s) shall run consecutively to such unexpired sentences, unless one or more of the instant offense(s) arose out of the same transactions or occurrences as the unexpired sentences.

Sentencing Guidelines Sec. 5G1.3 (April 13, 1987) (emphasis added).

In United States v. Wills, 881 F.2d 823 (9th Cir. 1989), decided after Sanchez-Ortiz was sentenced, we held that a district "judge has discretion to impose a concurrent or consecutive sentence as a matter of law, under [18 U.S.C.] section 3584(a)." That statute grants to the district court the discretion to impose a concurrent or a consecutive sentence. " [S]ection 994(b) (1) requires that the Commission's guidelines be consistent with the provisions of Title 18...." Id. at 826-27.

We find no support in the record for the appellant's contention that the district court was laboring under any misapprehension that it was required to impose a consecutive sentence. The court properly exercised its discretion to impose a consecutive sentence based on Sanchez-Ortiz's "incredible record" and its previous warning that he "would be looking at the whole term" if he violated his probation.

AFFIRMED.