United States v. Zuniga-Lazaro, Sergi ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3866
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SERGIO ZUNIGA-LAZARO,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-CR-58—John C. Shabaz, Judge.
____________
ARGUED SEPTEMBER 21, 2004—DECIDED NOVEMBER 3, 2004
____________
Before MANION, ROVNER, and WOOD, Circuit Judges.
ROVNER, Circuit Judge. Sergio Zuniga-Lazaro, a citizen
of Mexico, pleaded guilty to being present in the United
States without the permission of the Attorney General after
previously having been deported. The district court ordered
him to serve a prison term of 57 months, a sentence at the
top of the range specified by the Sentencing Guidelines.
Zuniga-Lazaro appeals, contending that the district court
may have denied his request for a downward departure be-
cause it misunderstood the nature of one of his prior con-
victions and that the court erred in assigning criminal
history points to that and certain other prior convictions.
2 No. 03-3866
We have no jurisdiction to review the discretionary denial
of Zuniga-Lazaro’s departure motion; and although the
court did err in assigning criminal history points to one of
his prior convictions, we are satisfied that the error had no
impact on the sentencing decision. We therefore affirm the
sentence.
I.
Zuniga-Lazaro has been entering this country illegally
since 1980. In 1992, he was convicted in an Illinois court of
aggravated criminal sexual abuse. After he finished serving
his 90-day jail term for that offense, the Immigration and
Naturalization Service (“INS”) took him into custody but re-
leased him on bond pending a deportation hearing. Zuniga-
Lazaro failed to appear for that hearing and was deported
in absentia on September 8, 1992. He remained at large for
nearly seven years. Following his arrest in Billings,
Montana, Zuniga-Lazaro departed the country voluntarily on
August 26, 1999. He re-entered the country within weeks,
however. In January 2002, he was arrested in Minneapolis
and charged with theft. At that time, the 1992 removal
order was reinstated and the INS removed him to Mexico on
February 1, 2002. He returned to the United States in
March of the following year.
On April 23, 2003, the Wisconsin State Patrol arrested
Zuniga-Lazaro in Janesville, Wisconsin, for driving without
a license. The State Patrol subsequently determined that
Zuniga-Lazaro previously had been deported and was present
in this country illegally. The federal Bureau of Immigration
and Customs Enforcement (“BICE”)—the successor to the
INS—took custody of Zuniga-Lazaro two days later.
A grand jury later indicted Zuniga-Lazaro for entering the
United States without official permission following his prior
deportation from this country. See 8 U.S.C. § 1326(a).
Zuniga-Lazaro eventually entered into an agreement with
No. 03-3866 3
the government pursuant to which he agreed to plead guilty
to the charge and the government agreed to recommend that
the court grant him maximum credit under the Sentencing
Guidelines for acceptance of responsibility. R. 15. At a change-
of-plea hearing on August 6, 2003, the district court accepted
Zuniga-Lazaro’s guilty plea and entered a judgment of
conviction. R. 28.
The Probation Office subsequently conducted an investi-
gation into Zuniga-Lazaro’s background and criminal history
and prepared a Pre-Sentence Report (“PSR”). R. 34. Pursu-
ant to the November 2002 Sentencing Guidelines, the PSR
assigned a total of six criminal history points to Zuniga-
Lazaro : two points for the 90-day jail term imposed on his
1992 conviction for aggravated criminal sexual abuse (see
United States Sentencing Commission, Guidelines Manual,
§ 4A1.1(b) (Nov. 2002)); two points for an outstanding war-
rant for his arrest issued by a California court for violating
the terms of a two-year term of probation (see § 4A1.1(d));
one point for a one-year sentence of conditional discharge
imposed on a 1997 Illinois conviction for domestic battery
(see §§ 4A1.1(c), 4A1.2(c)(1)); and one point for a 30-day
suspended jail term and one year of probation imposed on
a 2002 conviction for leaving the scene of an accident in
Minnesota (see §§ 4A1.1(c), 4A1.2(c)(1)). R. 34 at 7-11 ¶¶ 37,
38, 41, 43. These six points placed Zuniga-Lazaro in a crim-
inal history category of III. Id. ¶ 44. The Guidelines specified
a base offense level of 8 for Zuniga-Lazaro’s offense, see
§ 2L1.2(a); however, that was increased by 16 levels because
his prior deportation followed his 1992 conviction for aggra-
vated criminal sexual abuse, which under the Guidelines was
considered a felony crime of violence. R. 34 at 6 ¶¶ 21-22;
see § 2L1.2(b)(1)(A)(ii) & comment. (n.1(B)(ii)(I)). In view of
Zuniga-Lazaro’s guilty plea and consistent with the plea
agreement, the PSR subtracted three levels (the maximum
deduction) for acceptance of responsibility. R. 34 at 6 ¶¶ 17-
18, 26; § 3E1.1. The final adjusted offense level of 21,
4 No. 03-3866
coupled with a category III criminal history, yielded a sen-
tencing range of 46 to 57 months. Neither party filed any
objections to the PSR.
On October 15, 2003, Zuniga-Lazaro appeared for sentenc-
ing. After confirming that his attorney had reviewed the
PSR with him and that Zuniga-Lazaro had no objections to
the PSR, R. 29 at 2-3, the district court reviewed and adopted
the PSR’s calculation of the sentencing range, R. 29 at 5.
Zuniga-Lazaro’s attorney made an oral motion for a down-
ward departure from that range pursuant to Guidelines
section 5K2.13, contending that Zuniga-Lazaro was suffering
from a significantly reduced mental capacity at the time of
his offense. R. 29 at 6.
Defendant’s other criminal history and his biography
in general suggests a man of limited capacity leading a
hard scrabble life. The presentence report mentions a
childhood head injury and a resulting steel plate and
memory problems. The probation officer conducting the
interview in preparation of the report notes during her
interview that the defendant had difficulty staying on
track and answering questions. The defendant has no
known mental health issues. He takes no medications
for mental illness nor has any debilitating chemical de-
pendency. However, given his criminal history and bi-
ography suggesting a diminished capacity, that is not
the result of voluntary drug or alcohol use.
He shows a relatively minimal history of violence and
will be deported again the moment he is released from
U.S. custody. Defense does not suggest that the defendant
be released with a mere slap on the wrist, but given the
combination of factors of diminished capacity and im-
mediate deportation upon release the defense respect-
fully recommends a downward departure and suggests
a sentence in the range of 18 to 24 months which under
the guidelines would be the equivalent to that merited
No. 03-3866 5
given a Criminal History Category III of an offense level
of 13 down from an offense level of 21. Thank you, Your
Honor.
R. 29 at 6-7.
The government neither supported nor opposed the motion.
The Assistant United States Attorney remarked simply that
“the government has no doubt that the motion is made in
good faith and I just note that the . . . criminal conduct in
this case is very minor but the government will not take a
position on the motion.” R. 29 at 7.
When given the opportunity to address the court himself,
Zuniga-Lazaro made a brief statement in which he, among
other things, promised that he would not re-enter the
United States:
I’m sorry. Forgive me. My parents are elderly and sick
and they are about 70 years old and they are also poor.
I don’t want to lose them. I lost my children. I won’t
come back. I am sorry. And God bless everybody.
R. 29 at 7.
The district court denied Zuniga-Lazaro’s departure motion.
The court noted that pursuant to Guidelines section 5K2.13,
a departure might be appropriate if the defendant commit-
ted the offense while suffering from a significantly reduced
mental capacity. R. 29 at 7-8. However, in the court’s view,
there was “nothing in the record whatsoever” indicating that
Zuniga-Lazaro’s mental capacity was so impaired when he
entered the country illegally, and consequently there was
“absolutely no reason for any such downward departure.”
Id. at 8. The court pointed out that during its colloquy with
Zuniga-Lazaro at the change-of-plea hearing, Zuniga-Lazaro
indicated that he understood the proceedings and did not
suggest at that time that he suffered from any mental health
problems. Id. Similarly, the PSR revealed no known history
of any mental illness or treatment by a mental health profes-
6 No. 03-3866
sional. Id. The court acknowledged that Zuniga-Lazaro had
been beaten as a child, that he had sustained a head injury
at age eight or nine that required the insertion of a steel
plate, that he suffered some memory problems, and that he
had difficulty “staying on track.” Id. at 8-9. “But the defendant
does not take any prescribed medications, did not report a
history of any diagnosed illnesses or diseases, [and] is under
no treatment whatsoever which would suggest a diminished
capacity.” Id. at 9. On that basis, the court denied the mo-
tion. Id.; see also id. at 11 (“There is nothing in the record
to suggest he has any diminished mental capacity.”); R. 35
(court’s written statement of reasons for sentence) (finding
that defendant had not established that he had reduced
mental capabilities and that defendant had not committed
offense while suffering from significantly reduced mental
capacity). The court went on to remark that even if it were
inclined to depart downward, it still would have to take into
account circumstances other than Zuniga-Lazaro’s mental
capacity, including the nature of his offense, his criminal his-
tory, the need for incarceration, and public safety. R. 29 at
11; see 18 U.S.C. § 3553(a); U.S.S.G. § 5K2.13(2) & (3). The
court believed that those factors supplied a second reason to
deny the motion:
The departure, number one, is not warranted and the
Court does believe that this defendant will recidivate
regardless of his comments to the contrary and has been
involved in violence and is a serious threat of violence.
R. 29 at 11.
Having denied the request for a downward departure, the
court went on to consider whether an upward departure to a
higher criminal history category was appropriate in view of
Zuniga-Lazaro’s criminal history. See U.S.S.G. § 4A1.3. In
discussing that possibility, the court recognized that he had
a “fairly extensive” arrest record dating back to 1990. Id. at
9. It also noted that he had been convicted for aggravated
No. 03-3866 7
criminal sexual abuse in 1992. “[T]his is a significant
conviction.” Id. at 10. Finally, the court noted that there
was an outstanding warrant for Zuniga-Lazaro’s arrest in
Minnesota on a felony charge, as well as the pending arrest
warrant in California for a probation violation. Id. In view
of these circumstances, the court believed that a criminal
history category of III did not adequately account for the
extent of his criminal history. Id.
However, the court ultimately elected not to depart upward,
concluding that a sentence at the top of the Guidelines range
was “sufficient to accomplish the statutory purpose of sen-
tencing as defined in 18 U.S.C. § 3553(a) without an upward
departure.” R. 29 at 10; see also R. 35. After recounting
Zuniga-Lazaro’s multiple illegal entries into the United
States, the court remarked:
The Court believes that if this past activity is any in-
dication whatsoever of the defendant’s future he’s likely
to return to the United States at his first opportunity.
That’s the reason that the sentence is provided at the
top of the guideline range for incapacitation and deter-
rence should—this should be the primary objective at
sentencing.
R. 29 at 11.
II.
A. Denial of Downward Departure
Zuniga-Lazaro contends that the district court committed
a threshold legal error in denying his request for a down-
ward departure for diminished mental capacity. The
Guidelines authorize a downward departure if the defendant
suffered from a significantly reduced mental capacity when
he committed the offense. U.S.S.G. § 5K2.13 (Nov. 2002).
However, such a departure is forbidden if either the facts
and the circumstances of the defendant’s crime or his crim-
8 No. 03-3866
inal history indicate a need to protect the public. § 5K2.13(2)
& (3). Zuniga-Lazaro believes that the district court impli-
citly ruled him ineligible for a departure based on the court’s
perception that the aggravated criminal sexual abuse of which
he was convicted in 1992 constituted a crime of violence. See
R. 29 at 9 (“this defendant . . . has been involved in violence
and is a serious threat of violence”). In fact, Zuniga-Lazaro
argues, the 1992 offense does not constitute a “crime of
violence” under the relevant case law; and because he be-
lieves the district court refused to consider his departure
request based on an erroneous understanding of the nature
of the 1992 conviction, he asks that we vacate his sentence
and remand the case to the district court for reconsideration
of his motion.
Generally speaking, we lack jurisdiction to review a dis-
trict court’s refusal to grant the defendant a downward de-
parture so long as the district court was aware of its authority
to depart and declined to do so in the exercise of its discre-
tion. E.g., United States v. Aron, 328 F.3d 938, 940 (7th Cir.
2003). The record in this case reveals that the district court
was aware of the authority bestowed on it by section 5K2.13
to depart downward, R. 29 at 7-8, and, indeed, Zuniga-
Lazaro concedes as much, Zuniga-Lazaro Reply Br. at 5. In
the government’s view, this makes clear that we lack
jurisdiction to review the denial of Zuniga-Lazaro’s de-
parture request. Our opinion in United States v. Cravens,
275 F.3d 637, 641 (7th Cir. 2001), lends support to that
view. Cravens indicates that so long as the district court has
“correctly applied” the eligibility criteria set forth in section
5K2.13, 275 F.3d at 641, we may not review its findings as
to these criteria, id. at 641-42. Accord United States v.
Duncan, 99 Fed. Appx. 196, 199, 2004 WL 1098917, at *3
(10th Cir. May 18, 2004) (unpublished). On the other hand,
there are decisions from this court dealing with a former
version of section 5K2.13, which restricted the authority to
depart to cases in which the defendant had committed a
No. 03-3866 9
“non-violent offense,” see U.S.S.G. § 5K2.13 (Nov. 1997),
holding that when the district court concludes that the
defendant committed a violent offense, it is making a legal
determination that the defendant is ineligible for the de-
parture which is within our jurisdiction to review. United
States v. Poff, 926 F.2d 588, 590-91 (7th Cir. 1991) (en banc),
followed in United States v. Mansoori, 304 F.3d 635, 672 (7th
Cir. 2002). Accord United States v. Pizzichiello, 272 F.3d
1232, 1238 (9th Cir. 2001) (whether underlying offense in-
volved actual violence, for purposes of current version of
§ 5K2.13, is a legal determination subject to appellate review).
Ultimately, we need not decide whether the district court
actually was making an eligibility determination when it
referenced Zuniga-Lazaro’s propensity for violence nor
whether we have jurisdiction to review the district court’s
assessment of his criminal history. Even assuming that we
do have the authority to review that assessment, the district
court had another, independent ground for denying the de-
parture that would be unaffected by any holding we might
render as to the characterization of Zuniga-Lazaro’s criminal
history in general or his 1992 conviction in particular.1
The record leaves no doubt that the principal basis on which
the district court denied Zuniga-Lazaro’s departure motion
was the lack of sufficient proof that he actually suffered
1
As the government points out, it is not at all clear that the
district court was focusing on Zuniga-Lazaro’s 1992 conviction
when it spoke of his propensity to engage in violence. R. 29 at 9.
Zuniga-Lazaro’s substantial criminal history includes other con-
victions and arrests that arguably bespeak that propensity, see,
e.g., R. 34 at 10 ¶ 38 (domestic battery), and the court did not place
emphasis on the 1992 conviction for aggravated criminal sexual
abuse until after it had already disposed of Zuniga-Lazaro’s depar-
ture motion and began to consider whether an upward departure to
a higher criminal history category might be appropriate, see R. 29
at 9-10.
10 No. 03-3866
from a significantly reduced mental capacity at the time of
the underlying offense. R. 29 at 8 (“There’s nothing in the
record whatsoever . . . to suggest that this defendant commit-
ted this offense while suffering from a significant[ly] reduced
mental capacity.”). The court’s written findings confirm that
point. R. 35. Although, in its oral remarks, the court also
cited Zuniga-Lazaro’s prior record of violence, the likelihood
that he would enter the country illegally yet again, and the
possibility that he might commit other violent acts, R. 29 at
9, these were, at most, secondary reasons for denying the
departure. The court’s remarks make clear that its primary
reason for denying the motion was the absence of proof that
he in fact suffered from a reduced mental capacity. See id.
at 9 (“The departure, number one, is not warranted . . . .”);
R. 35. The determination that the record did not adequately
support the assertion that Zuniga-Lazaro suffered from a
significantly reduced mental capacity at the time of his
offense was a discretionary, merits-based determination that
falls outside of our appellate jurisdiction. E.g., United States
v. Thomas, 181 F.3d 870, 873 (7th Cir. 1999). Zuniga-Lazaro
does not argue otherwise. As this was an entirely independ-
ent ground for the district court’s decision to deny Zuniga-
Lazaro’s departure motion and we are without the power to
review the court’s determination on this point, we need not
further consider the arguments he has made with respect to
the departure. Cf. Senese v. Chicago Area, Indep. Bhd. of
Teamsters Pension Fund, 237 F.3d 819, 823 (7th Cir. 2001)
(where district court gives two independent, dispositive
reasons for ruling against appellant, and only one is
challenged on appeal, any challenge to alternate basis is
waived and we will affirm ruling).
B. Criminal History Points for Domestic Battery and
Leaving the Scene of an Accident
The district court adopted the PSR’s assessment of
Zuniga-Lazaro’s criminal history, which assigned one point
No. 03-3866 11
each to the one-year sentence of conditional discharge im-
posed on Zuniga-Lazaro’s 1997 conviction in Illinois for
domestic battery and the 30-day suspended jail sentence
imposed on his 2002 Minnesota conviction for leaving the
scene of an accident. R 34 at 10-11 ¶¶ 38, 41. Had the court
assigned no points to these prior sentences, and had the
district court not made the two-point error discussed in the
next section, the resulting criminal history score of 2 would
have placed Zuniga-Lazaro in a lower criminal history cate-
gory and a lower sentencing range. In view of this court’s
decision in United States v. Caputo, 978 F.2d 972, 976-77
(7th Cir. 1992), Zuniga-Lazaro concedes that the district
court committed no error by including these two sentences
in the criminal history calculation. Zuniga-Lazaro Br. 25.
However, Zuniga-Lazaro contends that Caputo was wrongly
decided and urges us to overrule it. In his view, a suspended
sentence as well as a sentence of conditional discharge should
be treated as the functional equivalent of an expungement
and on that basis excluded from the criminal history com-
putation. As he raised no objection below to the inclusion of
these two sentences in his criminal history score, our review
is for plain error alone. E.g., United States v. Frazier, 213
F.3d 409, 417-18 (7th Cir. 2000).
The court did not plainly err by assigning a criminal his-
tory point to the sentence of conditional discharge. Section
4A1.2(c) (1)(A) provides that sentences for misdemeanor and
petty offenses are counted in the criminal history score,
except that sentences for 15 identified offenses ranging from
careless or reckless driving to trespassing—and for other
offenses similar to those listed—are to be counted in the
criminal history computation only if “the sentence was a
term of probation of at least one year or a term of imprison-
ment of at least thirty days.” The parties assume that
domestic battery, although not one of the crimes listed in
the section 4A1.2(c)(1)A), is an offense similar to those listed,
such that his domestic battery sentence can only be counted
12 No. 03-3866
if it required him to spend at least 30 days in jail or at least
one year on probation. See generally United States v. Boyd,
146 F.3d 499, 501 (7th Cir. 1998) (explaining how this circuit
determines whether an offense is similar to those listed in
the guideline). We have our doubts about the validity of
that assumption, as Illinois conditions a conviction for
domestic battery on proof that the defendant intentionally
or knowingly inflicted bodily harm upon, or made physical
contact of an insulting or provocative nature with, a family
or household member. 720 Ill. Comp. Stat. 5/12-3.2(a); see
United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir. 1990)
(sentence for resisting arrest and battery on police officer
properly counted pursuant to section 4A1.2(c)(1), as battery
component of conviction was not similar to offenses listed in
guideline); see also United States v. Horton, 158 F.3d 1227
(11th Cir. 1998) (per curiam) (simple assault is not similar
to offenses listed in guideline) (collecting cases). We may set
that issue aside, however. Even assuming that domestic
battery is similar to the listed offenses, Zuniga-Lazaro’s
sentence would be excluded from the criminal history
computation only if we agreed with him that a one-year
sentence of conditional discharge is not the functional
equivalent of a one-year sentence of probation, which by the
plain language of the guideline must be counted.
As Zuniga-Lazaro recognizes, our opinion in Caputo holds
squarely against him on this point. We reasoned that under
Illinois law, conditional discharge “is probation without the
probation officer and that is a distinction without a differ-
ence so far as the purposes of the guideline exception are
concerned.” 978 F.2d at 977; see also United States v. Scott,
19 F.3d 1238, 1246 (7th Cir. 1994). Therefore, a defendant
sentenced to a year or more of conditional discharge is treated
as if he were sentenced to a year or more of probation, and
the sentence is counted under section 4A1.2(c)(1). Caputo,
978 F.2d at 976-77. Since we decided Caputo, we have not
only reaffirmed its rationale, see United States v. Damico,
No. 03-3866 13
99 F.3d 1431, 1438 (7th Cir. 1996), but extended it to sen-
tences of court supervision, see Boyd, 146 F.3d at 502 (citing
United States v. Binford, 108 F.3d 723, 727 (7th Cir. 1997)).
Other circuits have likewise concluded that sentences of
conditional discharge and probation are equivalent for pur-
poses of section 4A1.2(c)(1). See United States v. Rollins,
378 F.3d 535, 538 (6th Cir. 2004) (collecting cases); see also
United States v. Labella-Szuba, 92 F.3d 136, 138 (2d Cir.
1996) (“every circuit that has compared a conditional dis-
charge sentence to a sentence of unsupervised release has
found them to be functionally equivalent”). Zuniga-Lazaro
does not cite, and we cannot find, any case that rejects
Caputo’s holding. Although, as he points out, the Eighth
Circuit has held that a stayed sentence, under Minnesota
law, is not the equivalent of probation for purposes of the
guideline, United States v. Johnson, 43 F.3d 1211, 1215-16
(8th Cir. 1995), the court simply distinguished Caputo (and
Illinois’ treatment of conditional discharge) rather than
expressing any doubt about Caputo’s reasoning; indeed, as
Johnson itself noted, the Eighth Circuit has adopted Caputo’s
holding as to sentences of conditional discharge, id. (citing
United States v. Lloyd, 43 F.3d 1183, 1187-88 (8th Cir. 1994)).
“We do not take lightly suggestions to overrule circuit prece-
dent,” Chicago Truck Drivers, Helpers & Warehouse Union
(Indep.) Pension Fund v. Steinberg, 32 F.3d 269, 272 (7th Cir.
1994), and we discern no basis for doing so here, particu-
larly given the constraints of plain error review.
As for the sentence imposed on Zuniga-Lazaro’s 2002
conviction for leaving the scene of an accident, we note that
the sentence included not just a suspended 30-day jail term
but also a one-year term of probation. R. 34 at 11 ¶ 41. The
plain language of section 4A1.2(c)(1)(A) dictates that a one-
year sentence of probation for offenses including leaving the
scene of an accident shall be included in the defendant’s
criminal history score. Consequently, irrespective of how the
suspended 30-day jail term would be treated standing alone,
14 No. 03-3866
the probation portion of the sentence suffices to bring
Zuniga-Lazaro’s sentence within the guideline. See, e.g.,
United States v. Tomasi, 313 F.3d 653, 657 (2d Cir. 2002)
(sentence including suspended jail term of zero to 30 days
plus probation term of at least one year properly assigned
one point pursuant to § 4A1.2(c)).
C. Criminal History Points for 1992 Sexual Abuse
Conviction
Consistent with the PSR, the district court assigned two
criminal history points to the sentence of 90 days in jail and
three years’ probation imposed on March 6, 1992 pursuant
to Zuniga-Lazaro’s conviction for aggravated criminal sexual
abuse. See R. 34 at 9 ¶ 37. However, because the sentence
was imposed more than 10 years before Zuniga-Lazaro en-
tered the country illegally (on or about March 5, 2003), it
should not have been assigned any points in the calculation
of his criminal history score. § 4A1.2(e)(2), (3); see United
States v. Donaghe, 50 F.3d 608, 612 (9th Cir. 1994). The
government correctly concedes that the district court erred.
However, because no objection was raised below to the
computation of Zuniga-Lazaro’s criminal history score, the
error must rise to the level of “[a] plain error that affects
substantial rights” before we may recognize it on appeal.
Fed. R. Crim. P. 52(b); e.g., United States v. Cotton, 535 U.S.
625, 631, 122 S. Ct. 1781, 1785 (2002).
Although, given the straightforward language of the guide-
line, the error here was plain in the sense of being “clear or
obvious,” United States v. Shearer, 379 F.3d 453, 456 (7th
Cir. 2004), or “ ‘palpably wrong,’ ” United States v. Bauer, 129
F.3d 962, 964 (7th Cir. 1997) (quoting United States v. Flores-
Sandoval, 94 F.3d 346, 351 (7th Cir. 1996)), we are satisfied
that it did not affect Zuniga-Lazaro’s substantial rights.
Had the probation officer and the court not assigned two
criminal history points to the 1992 conviction, Zuniga-
No. 03-3866 15
Lazaro would have had a criminal history score of four
rather than six. However, that lesser score still would have
placed him in a criminal history category of III, and the
sentencing range would have been unaffected. The record
gives us no reason to believe that the district court might
have sentenced Zuniga-Lazaro other than at the top of that
range simply because his criminal history score was two
points less than it assumed. On the contrary, the court, as
have noted, was concerned that a criminal history category
of III did not adequately reflect the gravity of Zuniga-
Lazaro’s record or the likelihood that he would re-offend,
and for that reason it considered departing upward to a
higher criminal history category. R. 29 at 10; see also R. 35.
The court ultimately decided against a departure, reasoning
that a sentence at the high end of the sentencing range
would sufficiently account for its concern. R. 29 at 10; R. 35.
Knowing that Zuniga-Lazaro’s correct criminal history score
was four rather than six would not have altered this
decision. In short, the error in calculating his criminal his-
tory score was harmless. See United States v. Berkey, 161
F.3d 1099, 1103-04 (7th Cir. 1998) (even if court erred in
calculating criminal history score, relief not warranted on
plain error review where criminal history category unaf-
fected).
III.
Having concluded that we lack jurisdiction to review the
district court’s denial of Zuniga-Lazaro’s request for a
downward departure pursuant to section 5K2.13 of the
Guidelines and that the district court committed no plain
error that affected his substantial rights in computing his
criminal history score, we AFFIRM Zuniga-Lazaro’s sentence.
16 No. 03-3866
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-3-04