F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 5 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Nos. 99-6453
v. &
00-6019
SHAWN LENARDO LAW, (D.C. No. CR-99-68-T)
(W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY , PORFILIO , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument.
Defendant pleaded guilty to possession with intent to distribute cocaine
base in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to
*
This order and judgment is not binding precedent, except under the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.
292 months imprisonment, followed by five years of supervised release. It also
assessed a monetary penalty and required defendant to participate in a substance
abuse program. In this appeal, defendant challenges the district court’s
calculation of his criminal history points in determining his sentence under the
United States Sentencing Guidelines (USSG).
On appeal, “[w]e review the district court’s legal interpretation of the
guidelines de novo and review its findings of fact for clear error, giving due
deference to the district court’s application of the guidelines to the facts.” United
States v. Janusz , 135 F.3d 1319, 1324 (10th Cir. 1998) (citations omitted).
Guided by these standards, we affirm.
Defendant makes two challenges to the district court’s calculation of his
criminal history points. First, he argues that he should have received only three
points, instead of nine, for three drug-related convictions in Oklahoma state court.
He maintains that, since the three cases were consolidated for sentencing purposes
and the sentences on the three convictions ran concurrently, the sentences were
in related cases and should have been treated as one sentence instead of three.
See USSG § 4A1.2(a)(2). Defendant misreads the commentary to § 4A1.2 in
making this argument. Application note 3 following that section states that
“[p]rior sentences are not considered related if they were for offenses that
were separated by an intervening arrest,” as these three sentences were.
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USSG § 4A1.2, comment. (n.3). Prior sentences are considered related if they
are consolidated for sentencing purposes only if there was no intervening arrest.
Id. (“Otherwise , prior sentences are considered related if they resulted from
offenses that . . . were consolidated for trial or sentencing.” (emphasis added)).
Consequently, the district court correctly counted the three sentences separately
for purposes of § 4A1.2, and it properly assessed a total of nine criminal history
points for them.
Next, defendant argues that the district court improperly assessed one
criminal history point for his misdemeanor conviction for driving with a
suspended license. He contends that the conviction should not have been counted
as a prior sentence under § 4A1.1 because that sentence was not imposed within
ten years of the instant offense, as required by § 4A1.2(e)(2). This argument fails
because it is the commencement of the instant offense, not the conviction or
sentence for the instant offense, that must occur within ten years from imposition
of the prior sentence. Id. The evidence before the district court indicated that
plaintiff commenced the instant offense as early as January 1996. Consequently,
the district court correctly added one criminal history point for defendant’s 1989
misdemeanor conviction.
In addition to defendant’s arguments on appeal, this court ordered
supplemental briefing on the issue of whether his one-year suspended sentence for
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driving with a suspended license qualified as a prior sentence under §§ 4A1.1(c)
and 4A1.2(c)(1)(A). We do not address this issue, however, because even if the
one point for that sentence were subtracted, thus reducing defendant’s
criminal-history-point total from fifteen to fourteen, his criminal history category
would still be VI and the sentencing guideline range would remain the same.
See United States v. Williams , 919 F.2d 1451, 1458 (10th Cir. 1990) (declining to
address sentencing issue where criminal history category and resulting guideline
range would remain unchanged).
Finally, we must address a procedural problem with these consolidated
appeals. Defendant filed a timely pro se notice of appeal in No. 99-6453. The
notice of appeal in No. 00-6019, which was filed by defendant’s counsel, was not
filed within the ten-day filing period, and no permissible extension of the
deadline was granted. See Fed. R. App. P. 4(b)(1)(A) & (a)(5)(A). Consequently,
we lack appellate jurisdiction over No. 00-6019. See Budinich v. Becton
Dickinson & Co. , 486 U.S. 196, 203 (1988).
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In sum, we hold that the district court’s calculation of defendant’s sentence
under the guidelines was correct. Consequently, we AFFIRM the district court’s
judgment in No. 99-6453. We DISMISS No. 00-6019 for lack of jurisdiction.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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