United States of America, Plaintiff-appellee/cross-appellant, v. Ernesto Alonzo Cervantes-murillo, Aka Jorgebanderas-rodriguez, Jorge Cervantes-murillo,defendant-appellant/cross-appellee, 117 F.3d 1426 (9th Cir. 1997)

Before: FLETCHER and PREGERSON, Circuit Judges, and WEXLER, District Judge.^** 

MEMORANDUM^* 

Appellant/Cross-Appellee Ernesto Cervantes-Murrillo was convicted under 8 U.S.C. § 1326(a) and (b) (1) for illegal reentry after deportation "subsequent to a conviction for a commission of ... a felony." The district court imposed a 27-month sentence. Cervantes-Murrillo appeals the district court's denial of a 2-point reduction under U.S.S.G. § 3E1.1(a). The government appeals the district court's denial of a 16-level sentencing enhancement under U.S.S.G. § 2L1.2(b) (2).

The panel need not determine whether Cervantes-Murillo's decision to go to trial in this case disqualified him for a 2-point reduction under U.S.S.G. § 3El.1. In denying Cervantes-Murillo the reduction, the district court essentially concluded that Cervantes-Murillo did not demonstrate contrition, a requirement under U.S.S.G. § 3El.1. United States v. Sitton, 968 F.2d 947, 962 (9th Cir. 1992), cert. denied, 507 U.S. 929 (1993). The district court did not clearly err because its determination that Cervantes-Murillo did not demonstrate genuine contrition was not "without foundation." Cervantes-Murillo presents no compelling argument to show the district court's conclusion to be clearly erroneous.

This court's decision in United States v. Fuentes-Barahona, 111 F.3d 651, 653 (9th Cir. 1997), held that sentencing courts may not enhance a sentence under U.S.S.G. § 2L1.2(b) (2) by using an aggravated felony committed before November 29, 1990. Therefore, the district court did not commit error in refusing the government's request to adjust Cervantes's sentence upward by sixteen levels under U.S.S.G. § 2L1.2(b) (2).

Affirmed.