UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4581
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTOLIN RAMIREZ-RAMIREZ, a/k/a Javier Ramirez-Ramirez,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00137)
Submitted: September 30, 2008 Decided: October 14, 2008
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Russell W. Mace, III, RUSSELL MACE & ASSOCIATES, PA, Myrtle
Beach, South Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Adam Morris, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antolin Ramirez-Ramirez pled guilty to illegal
reentry, 8 U.S.C. § 1326(a), (b)(2) (2000), and received a
sentence of sixty-eight months imprisonment. He appeals his
sentence, contending that the district court plainly erred in
awarding two criminal history points for commission of the
offense while under a sentence of probation, U.S. Sentencing
Guidelines Manual § 4A1.1(d) (2006). We affirm.
Because Ramirez-Ramirez did not object to his criminal
history calculation in the district court, review is for plain
error. United States v. Olano, 507 U.S. 725, 732 (1993) (error
occurred, which was plain, affected defendant’s substantial
rights, and “seriously affects the fairness, integrity, or
public reputation of judicial proceedings”).
Two criminal history points are prescribed under USSG
§ 4A1.1(d) “if the defendant committed the instant offense while
under any criminal justice sentence, including probation . . .
.” Application Note 4 explains that a “criminal justice
sentence” is any “sentence countable under § 4A1.2 . . . having
a custodial or supervisory component, although active
supervision is not required for this item to apply.”
Application Note 4 further provides that “[a] defendant who
commits the instant offense while a violation warrant from a
prior sentence is outstanding (e.g., a probation . . . violation
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warrant) shall be deemed to be under a criminal justice sentence
for the purposes of this provision if that sentence is otherwise
countable, even if that sentence would have expired absent such
warrant.” See USSG § 4A1.2(m) (same).
Ramirez-Ramirez acknowledges that, in applying
§ 4A1.1(d), the sentencing court need not consider whether an
outstanding warrant is stale or whether state authorities were
lax in executing the warrant. See United States v. Davis, 313
F.3d 1300, 1305-06 (11th Cir. 2002); United States v. Mateo, 271
F.3d 11, 16 (1st Cir. 2001); United States v. Anderson, 184 F.3d
479, 481 (5th Cir. 1999); United States v. Elmore, 108 F.3d 23,
27-28 (3d Cir. 1997); United States v. Camilo, 71 F.3d 984 (1st
Cir. 1995).
Ramirez-Ramirez relies on the First Circuit’s
observation in Camilo that an unreasonable delay in the
execution of a warrant might give rise to a due process issue
under § 4A1.1(m), although not in Camilo’s case, because he was
responsible for the delay. Camilo, 71 F.3d at 988 & n.7. *
*
The First Circuit later held that, “in determining whether
to add criminal history points under USSG § 4A1.1(d), a
sentencing court ordinarily is not required to look beyond the
face of the state-court record, but, rather, may give weight to
an outstanding warrant without inquiring into the validity of
that warrant.” Mateo, 271 F.3d at 16 (noting that Camilo only
“left open the question of whether defects in a state warrant
process might be considered by the sentencing court”).
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Ramirez-Ramirez argues that, unlike Camilo, he was not
responsible for the delay in the execution of the warrant
against him. He contends that the § 4A1.1(d) enhancement
violated due process in his case because (1) he did not have an
opportunity to have the warrant set aside because he was
deported immediately after he finished serving his prison
sentence; (2) he did not willfully fail to appear in court but
was prevented by his incarceration on another charge; (3) state
authorities issued another warrant when the original warrant
expired while he was in prison; and (4) state authorities could
have discovered his location in prison and executed the warrant.
Because the district court was not required to
consider the circumstances surrounding the warrant outstanding
against Ramirez-Ramirez at the time of the instant offense,
Ramirez-Ramirez has not identified any error on the part of the
district court in adopting that recommendation in the
presentence report. We conclude that the district court did not
err, much less plainly err, in determining Ramirez-Ramirez’s
criminal history, and no due process violation occurred.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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