United States v. Guadalupe Mendoza-Nava , 250 F. App'x 752 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1183
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Guadalupe Mendoza-Nava, also known *
as Guadalupe Mendoza Martinez, also * [UNPUBLISHED]
known as Guadalupe Ascencio, also *
known as Noel Curz-Martine, also *
known as Guadalupe Mendoza- *
Martinez, also known as Noe Cruz, *
also known as Guadalupe Guadalupe- *
Ascencio, also known as Noel *
Curzmartine, also known as Guadalupe *
Mendoza, also known as Vicente *
Franco, also known as Natividad *
Canton-Gaspar, *
*
Appellant. *
___________
Submitted: October 5, 2007
Filed: October 10, 2007
___________
Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
___________
PER CURIAM.
Guadalupe Mendoza-Nava pleaded guilty to unlawfully re-entering the United
States after having been previously removed following his conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, he challenges
for the first time the district court’s1 calculation of his criminal history points under
the advisory Guidelines.
We review the court’s criminal history calculations for plain error. See United
States v. Plancarte-Vazquez, 450 F.3d 848, 854 (8th Cir. 2006). Under this standard,
we will reverse only judgments which affect substantial rights and seriously affect the
fairness, integrity, or public reputation of the judicial proceedings. See United States
v. Kamerud, 326 F.3d 1008, 1013 (8th Cir. 2003).
The record clearly establishes that, even if Mendoza-Nava was incorrectly
assessed 2 criminal history points for committing the instant offense while on
probation for a gross misdemeanor offense, the error was harmless because Mendoza-
Nava was undisputedly on parole for a domestic assault conviction at the time of the
offense. See U.S.S.G. § 4A1.1(d) (“[a]dd 2 points if the defendant committed the
instant offense while under any criminal justice sentence, including . . . parole”);
United States v. Gutierrez, 437 F.3d 733, 737 (8th Cir. 2006) (even if it was error to
include two additional criminal history points, error was harmless because it did not
alter Guidelines range); see also Fed. R. Crim. P. 32(i)(3)(A) (at sentencing court may
accept any undisputed portion of presentence report as finding of fact); United States
v. English, 329 F.3d 615, 617 (8th Cir. 2003) (court of appeals can affirm district
court’s judgment on grounds supported by record, even if grounds were rejected by
trial court). Consequently, even if it was also error to assess the other criminal history
point he disputes on appeal, any error was also harmless--because a reduction from
14 to 13 criminal history points could not affect his criminal history category. See
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
-2-
U.S.S.G. § 5 Sentencing Table (13 or more criminal history points results in Category
VI criminal history).
Accordingly, we conclude that Mendoza-Nava has not established plain error,
and the judgment is affirmed.
______________________________
-3-