USA v. Ascencion Hernandez-Perez, No. 08-50321 (9th Cir. 2010)

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FILED AUG 27 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 08-50321 D.C. No. 2:08-cr-00014-RGK-1 v. MEMORANDUM * ASCENSION HERNANDEZ-PEREZ, AKA Jose Asuncion Hernandez, AKA Jose Ascencion Hernandez, Defendant - Appellant. Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding Argued and Submitted June 10, 2010 Pasadena, California Before: KOZINSKI, Chief Judge, RAWLINSON, Circuit Judge, and BENNETT, District Judge.** Ascension Hernandez-Perez failed to show any prejudice from the district court s failure to comply with Federal Rules of Criminal Procedure Rule * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Mark W. Bennett, U.S. District Judge for the Northern District of Iowa, sitting by designation. 32(i)(1)(A). See United States v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir. 1994). Therefore, any error was harmless. See United States v. Soltero, 510 F.3d 858, 863 (9th Cir. 2007). The district court s addition of the two § 4A1.1(d) points brought his total criminal history from ten to twelve, but did not change his criminal history category of V, and thus resulted in the same Guidelines sentencing range. See U.S.S.G. Ch. 5, Pt. A. Because this was a fast track plea agreement, any error was harmless. See United States v. Cruz-Gramajo, 570 F.3d 1162, 1166 n.3 (9th Cir. 2009). AFFIRMED. 2

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