                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 10-3467
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                  MICHAEL VELEZ,

                                           Appellant
                                    _____________

                    On Appeal from the United States District Court
                           For the District of New Jersey
                             (D.C. No. 08-cr-00389-001)
                         District Judge: Hon. Peter Sheridan
                                    _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a),
                                 November 15, 2011

        BEFORE: FUENTES, CHAGARES, Circuit Judges, RESTANI, Judge*

                          (Opinion Filed: December 13, 2011)
                                   _____________

                              OPINION OF THE COURT
                                  _____________


FUENTES, Circuit Judge.




*
       Honorable Jane A. Restani, Judge of the United States Court of International
Trade, sitting by designation.
                                            1
       Appellant Michael Velez appeals his conviction and sentence of 63 months’

imprisonment. The sole issue on appeal is whether the District Court committed

procedural error when it added three additional criminal history points for a 1994

Pennsylvania state court conviction. We conclude that it did not.

                                             I.

       Because we write solely for the parties, we discuss only facts relevant to our

conclusion. Velez pled guilty to a one count information charging him with conspiracy

to commit wire fraud in violation of 18 U.S.C. § 1349.

       In calculating his criminal history category, the District Court included, over

defense counsel’s objection, three points from a 1994 conviction. In 1994, Velez pled

guilty to a charge of forgery-altered writing in violation of 18 Pa. C.S. § 4101(A)(1) in

the Pennsylvania Court of Common Pleas. He was sentenced to four years probation.

One year later, Velez violated probation and the court revoked his probationary sentence.

It then resentenced him to imprisonment “for not less than time served and no more than

23 months.” JA99. The judge also sentenced him to 2 years’ probation.

       At sentencing, the District Court determined that Velez’s total offense level was

22 and he had a criminal history category of V. The District Court sentenced him to 63

months’ imprisonment, which fell within the Guideline range as calculated. Velez timely

appealed.1

                                             II.


       1
               The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction pursuant to 18 U.S.C. § 3742(a).
                                             2
       We review the District Court’s interpretation of the Guidelines de novo and its

factual findings for clear error. United States v. Navarro, 476 F.3d 188, 191 (3d Cir.

2007). The District Court’s application of the Guidelines to the facts is reviewed for

abuse of discretion. United States v. Tupone, 442 F.3d 145, 149 (3d Cir. 2006).

       In reviewing a criminal sentence, we employ a two-step process. United States v.

Fumo, 655 F.3d 288, 308 (3d Cir. 2011). First, we review for procedural errors, such as

“failing to make a correct computation of the Guideline range.” Id. If there is no

procedural error, we then review it for substantive unreasonableness and will affirm

unless “no reasonable sentencing court would have imposed the same sentence on that

particular defendant.” Id.

                                            III.

       Under the sentencing Guidelines, three points are added “for each prior sentence

of imprisonment exceeding one year and one month.” U.S.S.G. § 4A1.1. A “sentence of

imprisonment” is defined as “a sentence of incarceration and refers to the maximum

sentence imposed.” Id. § 4A1.2(b)(1). This excludes any portion of a sentence which is

suspended. Id. § 4A1.2(b)(2).

       Here, Velez argues that the sentence he received for his 1994 conviction was time

served and the remaining months were suspended. We do not agree. There is no

evidence in the record that the judge intended to suspend any portion of the sentence. See

United States v. Frias, 338 F.3d 206, 212 (2003)(a suspended sentence is one where “the

sentencing judge [] mak[es] a firm decision at the time of sentencing regarding the

amount of imprisonment imposed.”) Rather, the record shows that the Pennsylvania

                                             3
judge sentenced Velez to an indeterminate sentence with a minimum term of

imprisonment as time served and a maximum of 23 months. Because the maximum

sentence that Velez could have served was 23 months, the District Court did not commit

procedural error when it included this conviction in calculating Velez’s criminal history

category. Velez makes no argument that the District Court’s Guideline sentence was

substantially unreasonable and we see no basis upon which to conclude otherwise.

                                                IV.

       Because the District Court neither procedurally erred nor imposed a sentence that

was substantially unreasonable, we will affirm the District Court’s order and sentence.




                                            4
