UNITED STATES of America, Plaintiff-Appellee, v. Everardo MENDOZA, Defendant-Appellant, 597 F. App'x 430

MEMORANDUM Everardo Mendoza appeals the sentence imposed following his plea of guilty to a violation of 21 U.S.C. § 846, alleging that the district court erred by assigning him two criminal history points under U.S.S.G. § 4A1.1(

d) and that he is accordingly eligible for safety-valve relief under U.S.S.G. § 2D1.1(b)(17). The district court’s

interpretation of the Sentencing Guidelines is reviewed de novo, but the application of the Guidelines to the facts is reviewed for abuse of discretion, and factual findings are reviewed for clear error. United States v. Albor-Flores, 577 F.3d 1104, 1107 (9th Cir.2009). “The district court’s assessment of prior convictions in calculating a defendant’s criminal history category is reviewed de novo.” United States v. Franco-Flores, 558 F.3d 978, 980 (9th Cir.2009). Mendoza’s sole argument for relief is that “[s]entenees resulting from convictions that (

A) have been reversed or vacated because of errors of law or because of subsequently discovered evidence exonerating the defendant, or (

B) have been ruled constitutionally invalid ... are not to be counted.” U.S.S.G. § 4A1.2 cmt. n. 6. However, Mendoza was under a diversionary disposition at the time he committed the instant offense, see U.S.S.G. § 4A1.2(f), and he failed to adduce any evidence supporting his contention that the diversionary disposition was subsequently reversed or vacated for one of the reasons specified above. Accordingly, the district court properly assessed two criminal history points under U.S.S.G. § 4A1.1(d), rendering Mendoza ineligible for safety-valve relief under U.S.S.G. § 2D1.1(b)(17). See U.S.S.G. § 501.2(a)(1).

AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.