United States v. Moreno

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JUL 12 2004
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 03-3085
v. (D.C. No. 02-CR-40005-SAC)
(Kansas)
CARLOS ALONSO MORENO,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
Carlos Alfonso Moreno brings this appeal challenging the district court’s
calculation of his sentence under the United States Sentencing Guidelines.
Pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we exercise jurisdiction over
Mr. Moreno’s appeal. The government concedes that the district court committed
plain error. We reverse and remand for resentencing.
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
Mr. Moreno was charged in district court with various drug offenses and
with being a felon in possession of a firearm. He entered a guilty plea to
possession with intent to distribute more than fifty grams of a substance
containing a detectable amount of methamphetamine, 21 U.S.C. § 841(a)(1), and
possession of a firearm by a prohibited person, 18 U.S.C. § 922(g).
In the presentence report (PSR) recommending Mr. Moreno’s sentence, the
Probation Officer added a point to his criminal history score as a result of
September 2001 convictions for driving with a suspended license and for unsafe
turning or stopping. Rec., vol. III at 17. For this earlier offense, Mr. Moreno was
sentenced to six months in jail, with all but five days suspended, and six months
of probation. Id. The Probation Officer justified the addition of this point by
citing the sentencing guidelines, which direct that sentences for less than sixty
days should be given one point. See U.S. S ENTENCING G UIDELINES M ANUAL §
4A1.1(c). The Probation Officer then determined that Mr. Moreno’s criminal
history points totaled ten, placing him at the bottom of criminal history category
V. Id. The district court agreed with this result and calculated Mr. Moreno’s
total adjusted offense level to be twenty-five. Rec., vol. II at 21, 25. The court
subsequently sentenced Mr. Moreno to 100 months in prison, which is at the
bottom of the 100 to 125 month range for an offense level twenty-five and
criminal history category V. Id. at 25.
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On appeal, Mr. Moreno asserts the district court erred by adding a point to
his criminal history for the earlier sentence. Absent the additional point, Mr.
Moreno would have been in a lower criminal history category and hence could
have been subjected to a shorter sentence. However, because Mr. Moreno failed
to raise an objection before the district court regarding the additional point for the
September 2001 sentence, our review of the district court’s sentencing
determination is limited to the plain error standard. United States v. Price, 265
F.3d 1097, 1107 (10th Cir. 2001).
Application of the wrong sentencing guideline range constitutes plain error.
United States v. Occhipinti, 998 F.2d 791, 801-02 (10th Cir. 1993). Pursuant to
the guidelines, certain sentences for misdemeanors and petty offenses are not
counted in calculating a defendant’s criminal history. U.S. S ENTENCING
G UIDELINES M ANUAL § 4A1.2(c). Driving with a suspended licence is to be
counted only if “the sentence was a term of probation for at least one year or a
term of imprisonment of at least thirty days, or . . . the prior offense was similar
to the instant offense.” U. S. S ENTENCING G UIDELINES M ANUAL § 4A1.2(c). In
this context, “[i]f part of a sentence of imprisonment [is] suspended, ‘sentence of
imprisonment’ refers only to the portion that was not suspended.” U.S. S ETENCING
G UIDELINES M ANUAL § 4A1.2(b)(2). “Minor traffic infractions (e.g., speeding)”
are never counted. U.S. S ENTENCING G UIDELINES MANUAL § 4A1.2(c)(2).
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As noted above, Mr. Moreno’s sentence for driving with a suspended
license and unsafe turning and stopping was six months in jail, with all but five
days suspended, and six months of probation. For the purposes of section
4A1.2(c)(1), then, Mr. Moreno’s sentence only amounted to the five days that
were not suspended. See U.S. S ENTENCING G UIDELINES M ANUAL § 4A1.2(b)(2).
Hence, his sentence for driving with a suspended license does not fall within
section 4A1.2(c)(1)’s group of covered sentences. Likewise, contrary to the
guideline’s requirements, Mr. Moreno’s previous driving infractions are not
similar to the present offense of drug and gun possession. Finally, the guidelines
make clear that a minor traffic offense, which certainly includes unsafe turning
and stopping, is not to be counted in calculating a defendant’s criminal history
category. Therefore, it was erroneous for the district court to add an additional
point to Mr. Moreno’s criminal history category for the September 2001 sentence.
The additional point resulted in the court applying the wrong sentencing guideline
range in calculating Mr. Moreno’s sentence, and constituted plain error under
Occhipinti. The government agrees that the district court plainly erred and
requests that the matter be remanded to the district court for resentencing.
Consequently, we REVERSE the district court’s ruling on this matter, and
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REMAND for resentencing.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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