United States v. Rodriguez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 24, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-40225 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-275-4 --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Court appointed counsel for Jose Rodriguez has moved for

leave to withdraw from this appeal and has filed a brief as

required by Anders v. California, 386 U.S. 738 (1967). Rodriguez

has filed a response and asserts that his criminal history score

was calculated erroneously because points were assigned to

convictions that predate the instant offense by more than fifteen

years. While convictions that occurred more than fifteen years

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-40225 -2-

prior to the instant offense typically are not counted, those

convictions are counted if the resultant incarceration extended

into the fifteen year period preceding the instant offense.

U.S.S.G. § 4A1.1, comment. (n.1). All convictions included in

Rodriguez’s criminal history score had periods of incarceration

that extended into the fifteen year period prior to Rodriguez’s

commission of the instant offense and thus were properly counted.

Our independent review of the record discloses no

nonfrivolous issue. Accordingly, counsel’s motion for leave to

withdraw is GRANTED, counsel is excused from further

responsibilities herein, and the APPEAL IS DISMISSED. See 5TH

CIR. R. 42.2.