United States v. Ortega ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
DEC 9 1999
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 99-2155
v. (D.C. No. CR-98-714-SC)
(District of New Mexico)
ROBERT L. ORTEGA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Robert L. Ortega pled guilty to one count of bank fraud. The district court
sentenced him to a 15-month term of imprisonment. Mr. Ortega appeals his
sentence. We review for clear error the district court’s factual findings at
sentencing, and we review de novo the court’s interpretation of the Sentencing
Guidelines. United States v. Simpson, 94 F.3d 1373, 1380 (10th Cir.), cert.
denied, 519 U.S. 975 (1996). Finding no error, we affirm.
At sentencing, the district court adopted the factual findings and guideline
applications as set forth in the presentence report. The court determined that Mr.
Ortega had an offense level of 6 and a criminal history category of V, establishing
a guideline range of 9 to 15 months imprisonment. Mr. Ortega argues that the
district court erred in concluding that two offenses described in paragraphs 46 and
47 of the presentence report were not related under U.S.S.G.
§ 4A1.2.
Mr. Ortega argues that these two offenses are related for purposes of §
4A1.1 because they were adjudicated as a single case in one plea disposition
proceeding, concurrent sentences were imposed, and they were treated as a single
case at a probation revocation proceeding.
We conclude, however, that, because the offenses involved were separated
by an intervening arrest, the district court was correct in not treating the offenses
at issue as related. See U.S.S.G. § 4A1.1, comment. (n.3) (“Prior sentences are
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not considered related if they were for offenses that were separated by an
intervening arrest (i.e., the defendant is arrested for the first offense prior to
committing the second offense).”); United States v. Wilson, 41 F.3d 1403, 1405
(10th Cir. 1994) (holding that where the defendant was arrested for the first
offense before he committed the second, “the fact that the sentences for these two
different crimes were imposed by the same court on the same date does not
convert these two convictions into related cases within the meaning of U.S.S.G. §
4A1.2(a)(2).”).
Accordingly, the sentence is AFFIRMED.
ENTERED FOR THE COURT
Monroe G. McKay
Senior Circuit Judge
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