United States v. Galvan-Guajardo

78 F. App'x 477
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 14, 2003
DocketNo. 02-6297
StatusPublished
Cited by3 cases

This text of 78 F. App'x 477 (United States v. Galvan-Guajardo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Galvan-Guajardo, 78 F. App'x 477 (6th Cir. 2003).

Opinion

OPINION

ROGERS, Circuit Judge.

Servando Galvan-Guajardo appeals the sentence imposed by the district court for a violation of 8 U.S.C. § 1326(a), which makes it unlawful for any deported alien to enter, to attempt to enter, or to be found in the United States without proper authorization. The crux of Galvan-Guajardo’s appeal is that, in fixing the sentence, the district court violated U.S.S.G. § 4A1.2(e)(l) when, in determining Gal-van-Guajardo’s criminal history score, it impermissibly considered prior convictions occurring more than fifteen years prior to the commencement of the offense. The [478]*478parties differ on the question of when a violation of § 1326 should be deemed to have commenced. We affirm because, even accepting Galvan-Guajardo’s argument, there would be no change in the applicable guideline range. Moreover, even if acceptance of Galvan-Guajardo’s argument could be deemed to have affected his sentence, the Government is correct in its contention that, for purposes of U.S.S.G. § 4A1.2(e)(l), the violation of § 1326(a) commenced when Galvan-Guajardo entered the United States in violation of the deportation order, and not when immigration officials subsequently “found” him.

I. BACKGROUND

On June 5, 2002, Galvan-Guajardo pleaded guilty to a one-count indictment after being found in the United States in violation of a deportation order. This was not his first encounter with the criminal justice system. Galvan-Guajardo had at least ten prior convictions dating back to 1983, ranging from simple assault to aggravated burglary to distribution of heroin. Prior to the sentencing hearing, the probation officer prepared a pre-sentence investigation report (“PSR”) which detailed each of these prior convictions, including five convictions occurring between 1983 and 1986. For each of the convictions, the probation officer assigned a point value in accordance with U.S.S.G. § 4A1.1, which sets forth the procedure for calculating an offender’s criminal history score. The five 1983-1986 convictions combined were worth seven criminal history points; Gal-van-Guajardo’s total criminal history score totaled 26 criminal history points. The sentencing guidelines classify an offender in one of six criminal history categories based upon this criminal history score; Galvan-Guajardo fell into category VI because he had a criminal history score higher than 13.

Galvan-Guajardo objected to the inclusion of the five 1983-1986 convictions in the calculation of his criminal history. He pointed out that U.S.S.G. § 4A1.2(e)(l) limits the court to considering any sentences of imprisonment imposed within fifteen years of the “commencement of the instant offense.” Galvan-Guajardo argued that the offense of “being found in” the United States began on November 5, 2001, when he was transferred from state authorities to federal immigration officials. Galvan-Guajardo asserted that the court could not consider any prior convictions occurring before November 5, 1986, because those convictions would fall outside the fifteen year time restriction.

The district court, unpersuaded by Gal-van-Guajardo’s contention, ruled that, for sentencing purposes, the offense began when the defendant last entered the country illegally. There was some question as to whether Galvan-Guajardo’s last illegal reentry occurred in 1992 or in 1995, but applying 1995 as the date the offense commenced, the court found that it could properly consider all of the prior convictions listed in the PSR. In applying the guidelines, the district court calculated the offense level to be 17, determined that Galvan-Guajardo fit in criminal history category VI (based upon his criminal history score of 26), determined the guideline range to be 51-63 months, and sentenced him to 63 months imprisonment. If the 1983-1986 convictions were not considered toward Galvan-Guajardo’s criminal history score, that score would have been reduced to 19, but he would nonetheless remain in criminal history category VI and his guideline range of 51-63 months would not change.

II. DISCUSSION

There appears to be no legal basis for us to review the district court’s applica[479]*479tion of the sentencing guidelines in this case. A defendant may only appeal a sentence that:

(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(ll) than the maximum established in the guideline range; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

18 U.S.C. § 3742(a). It is true that we have jurisdiction to review a sentence if the defendant can identify a “specific legal error” in the formulation of his sentence, where correcting the error might affect the guideline range, even when the sentence imposed was within the guideline range advocated by the defendant. See United States v. Lavoie, 19 F.3d 1102, 1104 (6th Cir.1994). Where, however, a defendant challenges a sentence within a guideline range correctly ascertained by the district court, and where there is no contention that the sentence was imposed based upon a consideration “prohibited by law” (see U.S.S.G. § 1B1.4), there is no basis for appeal of the sentence. See United States v. Lovins, 993 F.2d 1244, 1245 (6th Cir.1993).

Galvan-Guajardo asserts a specific legal error in this case, specifically, that the district court incorrectly applied § 1326(a) and considered prior convictions that should have been excluded from consideration under the time restriction of U.S.S.G. § 4A1.2(e)(l). But the error, if error it was, did not lead to an incorrect determination of a guideline range, and thus as a legal matter did not affect “the formulation of his sentence.”

The relief Galvan-Guajardo seeks can have no impact on his sentence because such a reduction cannot move Galvan-Guajardo out of category VI. Category VI encompasses offenders with criminal history scores of 13 and higher. Therefore, a reduction in criminal history score from 26 to 19 would have no effect on the correct determination of the guideline range. If we were to remand for resentencing with instructions to the district court to disregard the earlier convictions and reduce Galvan-Guajardo’s criminal history score commensurately, the district court would be faced with the identical guideline range. Only its (unreviewable) exercise of discretion within that range might change. But in determining where to sentence within the guideline range, the court may properly take into account prior convictions that cannot be used to determine the range in the first place. See U.S.S.G.

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