United States v. Hernandez-Bustamonte

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 22, 1999
• Docket: 98-4115
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 22 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4115 (D. Utah) JOSE LUIS HERNANDEZ- (D.Ct. No. 98-CR-80-S) BUSTAMONTE,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY, EBEL, and LUCERO, Circuit Judges.

After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. Appellant Jose Luis Hernandez-Bustamonte appeals his seventy-month

sentence after pleading guilty to re-entry into the United States as an alien

following deportation for a felon conviction, in violation of 8 U.S.C. § 1326. Mr.

Hernandez-Bustamonte, through his attorney’s Anders’ brief, 1 challenges the

computation of his sentence based on: (1) a 16-level enhancement for his prior

felony conviction for possession of cocaine, which he claims is not an

“aggravated” felony for the purpose of sentencing under United States Sentencing

Guideline § 2L1.2; and (2) a one-point criminal history assessment for a previous

conviction for burglary, which he claims should not be considered since it

involved domestic violence and excessively increased his criminal history. In a

pro se filing, Mr. Hernandez-Bustamonte also claims violation of his

constitutional rights under 18 U.S.C. § 3161 because his indictment occurred

thirty days after his initial arrest for distribution of a controlled substance. We

affirm Mr. Hernandez-Bustamonte’s conviction and sentence.

We review the district court’s legal interpretation of the Sentencing

1 See Anders v. California, 386 U.S. 738, 744 (1967). Mr. Hernandez- Bustamonte’s counsel also filed a motion to withdraw after determining this appeal is frivolous, thereby compromising his ability to effectively and ethically represent him. Motion for Leave to Withdraw as Counsel dated 12/7/98. We grant counsel’s motion to withdraw.

-2- Guidelines de novo. United States v. Aranda-Hernandez, 95 F.3d 977, 981 (10th

Cir. 1996), cert. denied, 520 U.S. 1144 (1997). Applying this standard of review,

we note that a conviction for possession of a controlled substance constitutes an

aggravated felony for the purposes of United States Sentencing Guideline

§ 2L1.2. Aranda-Hernandez, 95 F.3d at 981-82; United States v. Cabrera-Sosa,

81 F.3d 998, 1000 (10th Cir.), cert. denied, 117 S. Ct. 218 (1996). Therefore, the

district court properly applied Mr. Hernandez-Bustamonte’s prior felony

conviction for possession of cocaine in enhancing his sentence under § 2L1.2.

Mr. Hernandez-Bustamonte next claims the district court improperly

assessed a criminal history point for his burglary conviction. He argues the

burglary and related assault should not be considered because they are based on a

domestic dispute with his ex-wife. However, the record shows, and his counsel

acknowledges, the Probation Officer demonstrated the assessment’s merit at the

sentencing hearing and Mr. Hernandez-Bustamonte made no further objection and

accepted the one point-assessment. Because he failed to challenge the

presentencing report on this conviction at the sentencing hearing, Mr. Hernandez-

Bustamonte waived his right to challenge the assessment of a criminal history

point, absent a demonstration of plain error. United States v. Saucedo, 950 F.2d

1508, 1518 (10th Cir. 1991). On appeal, Mr. Hernandez-Bustamonte has made no

-3- such showing of error, and therefore, we conclude the district court properly

applied a criminal point for the burglary conviction.

Finally, Mr. Hernandez-Bustamonte claims violation of his constitutional

rights under 18 U.S.C. § 3161(b), because his indictment for re-entry into the

United States as an alien occurred thirty days after his initial arrest for

distribution of a controlled substance. We review de novo compliance with the

requirements of the Speedy Trial Act, including § 3161. United States v. Mora,

135 F.3d 1351, 1354 (10th Cir. 1998). Section 3161(b) of the Act requires an

indictment be filed within thirty days from the date of the individual’s arrest. 18

U.S.C. § 1361(b).

On review of the record, we note that state authorities arrested Mr.

Hernandez-Bustamonte on January 4, 1998 for distribution of a controlled

substance. However, his arrest for this drug matter is unrelated to his illegal re-

entry violation and does not trigger the period during which the indictment for his

illegal re-entry must occur. Rather, authorities did not learn of Mr. Hernandez-

Bustamonte’s illegal re-entry status until he admitted to it on February 6, 1998.

Based on his admission and the results of a preliminary investigation, a grand jury

issued an indictment against Mr. Hernandez-Bustamonte on February 11, 1998,

-4- for violation of 8 U.S.C. § 1326. The Immigration and Naturalization Service

then filed a detainer against Mr. Hernandez-Bustamonte on February 18, 1998.

Thus, the indictment occurred five days after admission and discovery of his

illegal alien status and six days prior to issuance of the detainer. No violation of

18 U.S.C. § 3161(b) occurred.

For these reasons, Mr. Hernandez-Bustamonte’s conviction and sentence

are AFFIRMED.

Entered by the Court:

WADE BRORBY United States Circuit Judge

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