United States v. Escamilla-Vasquez ( 2004 )

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4936
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN CARLOS ESCAMILLA-VASQUEZ, a/k/a Jose
Estrada,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-03-175-BO)
Submitted: June 18, 2004 Decided: July 13, 2004
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Jane E. Pearce, Research &
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Christine Witcover Dean, John S.
Bowler, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Juan Carlos Escamilla-Vasquez pled guilty without benefit
of a plea agreement to re-entering the United States after being
deported, 8 U.S.C. § 1326(a), (b)(2) (2000), and was sentenced to
a term of sixty months imprisonment. Escamilla-Vasquez appeals his
sentence, alleging that the district court erred in calculating his
criminal history under U.S. Sentencing Guidelines Manual § 4A1.1
(2002). We affirm.
Escamilla-Vasquez’s criminal history score consisted
entirely of sentences counted under USSG § 4A1.1(c), a total of
nine points. No more than four points may be counted under
§ 4A1.1(c); however, the district court added one more point under
§ 4A1.1(f), which permits one point for each sentence for a crime
of violence that was not counted under § 4A1.1(a), (b), or (c)
because it was considered related to another sentence for a crime
of violence. See USSG § 4A1.2(a)(2) & comment. (n.3) (defining
related cases). To the subtotal of five points, another two points
were added under § 4A1.1(d) because Escamilla-Vasquez was on
probation when he committed the instant offense. The total was
seven criminal history points, which placed Escamilla-Vasquez in
category IV.
Escamilla-Vasquez objected to the additional point
counted under § 4A1.1(f), arguing that the maximum of four points
applicable to sentences counted under § 4A1.1(c) also applied to
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points given under § 4A1.1(f). The district court determined that
the criminal history was correctly calculated.
On appeal, Escamilla-Vasquez asserts that applying
§ 4A1.1(f) to sentences counted under § 4A1.1(c), when it results
in points being assigned beyond the four-point maximum, leads to
unjust sentencing. He argues that, in his case, it constituted
impermissible triple counting, and the rule of lenity should have
been applied to preclude the extra point. Because the issue
involves the district court’s legal interpretation of the
guidelines, our review is de novo. United States v. Schaal, 340
F.3d 196, 198 (4th Cir. 2003).
Escamilla-Vasquez does not identify any error in the
criminal history calculation adopted by the district court. He
contends instead that the application of § 4A1.1(f) to § 4A1.1(c)
offenses leads to results that were not intended by the Sentencing
Commission because prior consolidated sentences for crimes of
violence expose a defendant to more criminal history points than
prior unconsolidated crimes of violence and thus penalize the
defendant for state sentencing procedures. Escamilla-Vasquez
concedes that “the guidelines should be applied as written,” and
that double or triple counting is permissible unless expressly
prohibited. See United States v. Crawford, 18 F.3d 1173, 1179-80
(4th Cir. 1994). Nonetheless, he argues that the addition of one
criminal history point under § 4A1.1(f) in his case constituted
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impermissible triple counting because his 2001 convictions were
used to enhance his offense level, USSG § 2L1.2(b)(1)(A)(ii); were
counted in his criminal history score under § 4A1.1(c); and the
sentence for one of them resulted in an additional criminal history
point under § 4A1.1(f). We find no merit in these contentions and
perceive no error in the district court’s determination of
Escamilla-Vasquez’s criminal history calculation. With respect to
the rule of lenity, which generally calls for courts to construe
ambiguous criminal statutes against the government and in favor of
the defendant, see United States v. Photogrammetric Servs., Inc.,
259 F.3d 229, 249 (4th Cir. 2001), it does not apply because the
guidelines at issue are not ambiguous.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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