UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4671
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO TORRES CASTILLA, a/k/a Ricardo Catilla, a/k/a Eber
Emanuel Urias Sanchez,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:11-cr-00393-FDW-1)
Submitted: May 5, 2014 Decided: May 9, 2014
Before WILKINSON, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Samuel B. Winthrop, WINTHROP & WINTHROP, Statesville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricardo Torres Castilla, a native and citizen of
Mexico, pled guilty to illegal reentry into the United States
following his removal subsequent to sustaining a felony
conviction. 8 U.S.C. § 1326(a), (b)(1) (2012). Castilla was
sentenced to thirty months’ imprisonment, which was at the
bottom of his advisory Sentencing Guidelines range. The lone
issue in this appeal is whether the district court procedurally
erred in assigning Castilla two criminal history points pursuant
to U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.1(d) (2011).
For the reasons that follow, we affirm.
Generally, in reviewing the district court’s
calculations under the Guidelines, “we review the district
court’s legal conclusions de novo and its factual findings for
clear error[,]” United States v. Manigan, 592 F.3d 621, 626 (4th
Cir. 2010) (internal quotation marks omitted), and will “find
clear error only if, on the entire evidence, we are left with
the definite and firm conviction that a mistake has been
committed.” Id. at 631 (internal quotation marks and alteration
omitted). However, while Castilla did object in the district
court to the application of USSG § 4A1.1(d), he did not advance
either of the two specific arguments he presents on appeal.
Accordingly, we will review both issues for plain error. United
2
States v. Rooks, 596 F.3d 204, 212 (4th Cir. 2010); United
States v. Blatstein, 482 F.3d 725, 731 (4th Cir. 2007).
Castilla first contends that his two-year probation
sentence, imposed by a Colorado state court in December 2007,
had expired by the time he committed the underlying federal
offense, and that the probationary period had not been extended.
Thus, Castilla maintains that he “did not commit any part of the
instant offense while under any criminal justice sentence.”
(Appellant’s Br. at 6-7).
But this argument ignores the legal effect of the
Colorado court’s probation violation warrant, which was issued
in January 2008. Specifically, USSG § 4A1.1(d) authorizes two
additional criminal history points “if the defendant committed
the instant offense while under any criminal justice sentence,
including probation, parole, supervised release, imprisonment,
work release, or escape status.” Pursuant to USSG § 4A1.2(m),
if the instant offense is committed while a probation violation
warrant from an earlier sentence is outstanding, the defendant
“shall be deemed to be under a criminal justice sentence if that
sentence is otherwise countable, even if that sentence would
have expired absent such a warrant.” A probationary sentence
is, of course, “otherwise countable.” USSG § 4A1.2 cmt. n.2.
Relying on information set forth in the presentence
report (“PSR”), the district court determined that Castilla was
3
“under” a probationary sentence when he committed the instant
federal offense in November 2011 because the Colorado court’s
probation violation warrant remained outstanding. Nothing in
the PSR suggested that the warrant had been executed, served, or
revoked.
Castilla counters by arguing that “there is no
evidence in the record to show ‘any violation warrant from a
prior sentence is still outstanding.’” (Appellant’s Br. at 8)
(quoting USSG § 4A1.1(d) cmt. n.4). Castilla theorizes that,
because the violation warrant was issued to ascertain his
deportation status and it is now certain that he was removed to
Mexico before the warrant was issued, it would have been
vacated. * (Id. at 8-9).
We simply cannot accept Castilla’s supposition on this
point. It is the defendant’s burden to submit proof to support
his refutation of an item contained in a PSR, see United States
*
In conjunction with this argument, Castilla points us to
United States v. Baty, 931 F.2d 8, 10-11 (5th Cir. 1991), in
which the Fifth Circuit held that a defendant is not under a
criminal justice sentence when, at the time of the federal
offense, there is an outstanding motion to revoke the
defendant’s state probation but no capias has been issued. But
Baty is distinguishable in that, here, there was an actual
violation warrant. Moreover, Baty’s continued relevance is
questionable, given that it was decided prior to enactment of
USSG § 4A1.2(m) and commentary note 4 to USSG § 4A1.1, which
directly address the significance of an outstanding violation
warrant.
4
v. Slade, 631 F.3d 185, 188 (4th Cir. 2011) (“The defendant
bears the burden of establishing that the information relied
upon by the district court — here the PSR — is erroneous.”), and
Castilla adduced no evidence to demonstrate that the Colorado
court had revoked or invalidated the violation warrant upon
learning of his removal. Moreover, at sentencing, the district
court may consider hearsay information that “has sufficient
indicia of reliability to support its probable accuracy,” USSG
§ 6A1.3(a), p.s., and the probation officer explained that she
had “court documents” and a “printout” of the state court
record, which reflected the issuance of a violation warrant.
Finally, we note that the sentencing court is under no
obligation to independently 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); see also United States v. Ramirez-Ramirez, 296
F. App’x 330, 330 (4th Cir. 2008). We thus conclude that
Castilla has not demonstrated any error, let alone plain error,
in the court’s application of USSG § 4A1.1(d) in this case.
Because we discern no procedural error in the
calculation of Castilla’s criminal history score, which is the
5
sole issue presented for our consideration, we affirm the
criminal judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
6