                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                       No. 13-2716
                                       __________

                            UNITED STATES OF AMERICA

                                            v.

                                      JOSE CRUZ,
                                            Appellant
                                       __________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Crim. No. 1-12-cr-00091-009)
                       District Judge: Hon. Christopher C. Conner

                                       __________

                       Submitted under Third Circuit LAR 34.1(a)
                                  February 11, 2014

           Before: CHAGARES, SHWARTZ and ALDISERT, Circuit Judges.

                                  (Filed: March 7, 2014)

                                       __________

                               OPINION OF THE COURT
                                     __________

ALDISERT, Circuit Judge.

       Jose Cruz appeals the judgment of the United States District Court for the Middle

District of Pennsylvania sentencing him to 120 months’ incarceration for distribution and

possession with the intent to distribute cocaine hydrochloride, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C). Cruz contends the District Court improperly calculated his

criminal history points under U.S.S.G. § 4A1.2(k)(1) by assigning three points for his

2001 and 2007 state convictions, respectively. For the reasons that follow, we will affirm.

                                               I.

         Because we write primarily for the parties, who are familiar with the facts and the

proceedings in this case, we will revisit them only briefly. On April 11, 2012, a grand

jury returned a seven-count indictment against Cruz, including a charge of distribution

and possession of cocaine hydrochloride (Count IV). On December 17, 2012, Cruz pled

guilty to Count IV pursuant to a written plea agreement.

         The U.S. Probation Office prepared a presentence investigation report (“PSR”),

which assigned 13 total criminal history points to Cruz.1 This incorporated six points for

two state convictions: one in 2001 for possession of marijuana (“2001 conviction”) and

another in 2007 for possession of a controlled substance (“2007 conviction”). For Cruz’s

2001 conviction, the state court sentenced Cruz to 30 days to 12 months of imprisonment.

Though Cruz was paroled, his parole was revoked and he was ordered to serve the

balance of three months and 23 days. For his 2007 conviction, the state court sentenced

Cruz to 12 months’ probation, which was later revoked and Cruz was ordered to serve six

to 12 months’ imprisonment. Cruz was then paroled while serving this sentence, but his

parole was again revoked and he was ordered to serve the balance of four months and

four days.



1
    Cruz does not object to seven of the criminal history points.
                                               2
       The PSR assigned three criminal history points for Cruz’s 2001 and 2007

convictions, respectively, which resulted in a criminal history category of VI. Cruz filed

an objection to the PSR and reiterated his objection at the sentencing hearing, arguing

that only two criminal history points should be assigned for each of the 2001 and 2007

convictions. The Court rejected Cruz’s argument, citing to U.S.S.G. § 4A1.2(k), which

instructs courts to add any term of imprisonment imposed upon revocation of parole or

probation to the initial stated maximum sentence to determine criminal history points.

Because the sums of the stated maximums and revocation sentences for the 2001 and

2007 convictions each exceeded one year and one month, the District Court determined

that the PSR correctly assigned three criminal history points for each conviction.

       After hearing testimony and arguments from both parties and resolving all

objections, the Court adopted the PSR.2 The Court sentenced Cruz to 120 months’

incarceration based on Cruz’s offense level of 26 and his criminal history category of VI.

Cruz now appeals.3

                                            II.

       “Our review of the District Court’s interpretation of the Sentencing Guidelines and

constitutional questions is plenary.” United States v. McKoy, 452 F.3d 234, 236 (3d Cir.

2006) (citation omitted).



2
  The Court sustained the Government’s objection to a three-point Guidelines credit in
the PSR for Cruz’s acceptance of responsibility, raising Cruz’s offense level from 23 to
26.
3
  The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                             3
       Cruz contends that the District Court erred in assigning three criminal history

points instead of two for his 2001 and 2007 convictions, respectively.4 The Guidelines

provide the following instructions to calculate criminal history points:

       (a)    Add 3 points for each prior sentence of imprisonment exceeding one year
              and one month.
       (b)    Add 2 points for each prior sentence of imprisonment of at least sixty days
              not counted in (a).

U.S.S.G. § 4A1.1. For prior indeterminate sentences, “the length of a sentence of

imprisonment is the stated maximum.” U.S.S.G. § 4A1.2, cmt. n.2. The Guidelines

further provide:

       In the case of a prior revocation of probation, parole, supervised release, special
       parole, or mandatory release, add the original term of imprisonment to any term of
       imprisonment imposed upon revocation. The resulting total is used to compute the
       criminal history points for § 4A1.1(a), (b), or (c), as applicable.

U.S.S.G. § 4A1.2(k)(1) (emphasis added). Accordingly, district courts are to add any

revocation sentences to the stated maximum to calculate criminal history points.

                                             III.

       Cruz sets forth four arguments for why the District Court erred in its assignment of

criminal history points for his 2001 and 2007 convictions. We address Cruz’s arguments

in turn and conclude that the District Court did not err.

       First, Cruz argues that the District Court’s assignment of three criminal history

points is based on a legally impossible characterization of the underlying state sentences.

Cruz notes that the terms of imprisonment relied on by the District Court—the sums of


4
 The total points from U.S.S.G. § 4A1.1(a) to (e) determine the applicable criminal
history category in the Sentencing Table in Chapter 5, Part A.
                                              4
the stated maximums and the revocation sentences for the 2001 and 2007 convictions,

respectively—exceed the possible punishment for the respective crimes under state law.

Before proceeding further, we reject Cruz’s contention that state law should be used to

interpret the Guidelines. Courts interpreting the Guidelines “must look to federal, not

state law.” McKoy, 452 F.3d at 237. Accordingly, we reject Cruz’s argument that the

District Court erred in assigning three criminal history points because doing so conflicts

with state law.

       Second, Cruz argues that the formula for addressing revocation terms in

§ 4A1.2(k)(1) should be reconsidered in light of the rule of lenity. Cruz’s argument is

unconvincing. “The rule of lenity applies only if, after seizing everything from which aid

can be derived, we can make no more than a guess as to what Congress intended.” Reno

v. Koray, 515 U.S. 50, 65 (1995) (internal citations and quotation marks omitted). We

find the meaning of § 4A1.2(k)(1) to be clear and unambiguous. Section 4A1.2(k)(1)

instructs that Cruz’s revocation sentences are to be added to the stated maximums for

both the 2001 and 2007 convictions. We reject Cruz’s argument and hold that the rule of

lenity does not apply.

       Third, Cruz argues that the District Court’s sentence violated his procedural due

process rights because it is a “re-characterization” of his original state sentences. Reply

Br. 3. We disagree. We note that “[e]nhancement statutes . . . in the nature of criminal

history provisions such as those contained in the Sentencing Guidelines . . . do not change

the penalty imposed for the earlier conviction.” Nichols v. United States, 511 U.S. 738,

747 (1994). Thus, the District Court’s assignment of criminal history points under the

                                              5
Guidelines did not re-characterize or change the penalty imposed for Cruz’s earlier

convictions. See id.

       We also reject Cruz’s contention that he was denied due process because he was

entitled to respond to the possibility of future sentencing enhancements when he “was

sentenced in state court in 2001 and 2007.” Reply Br. 4. Cruz offers no evidence that he

was not warned of potential future enhancements in 2001 and 2007. Moreover, warning a

defendant that he “will be treated more harshly” if he is later charged criminally “would

merely tell him what he must surely already know.” Nichols, 511 U.S. at 748-749

(holding that due process does not require a defendant to be warned that his conviction

might be used for enhancement purposes if he is later convicted of another crime).

       Due process only requires notice and an opportunity to respond to the factual

predicate and the potential punishments in sentencing. United States v. Ausburn, 502

F.3d 313, 322 (3d Cir. 2007). Here, Cruz had notice of the facts and prior convictions

underlying the PSR’s calculations. He was also given an opportunity to object to the

calculation and fully briefed the issue. Thus, Cruz’s due process rights were not violated.

       Finally, Cruz argues that the District Court’s calculations violate the ex post facto

clause. The ex post facto clause applies to laws that retroactively alter the definition of

criminal conduct or increase the punishment for criminal acts. Cal. Dep’t of Corr. v.

Morales, 514 U.S. 499, 504 (1995). As applied to the Sentencing Guidelines, an ex post

facto problem exists if the relevant Guideline has been materially changed between the

instant offense and the sentencing. United States v. Wood, 486 F.3d 781, 790 (3d Cir.

2007). The Sentencing Commission made no material changes to the relevant portions of

                                              6
§ 4A1.1 or § 4A1.2 between the date of the offense (September 2009) and the sentencing

hearing before the District Court (May 2013). Accordingly, there are no ex post facto

issues.

          We have considered all of the arguments advanced by the parties and conclude

that no further discussion is necessary. The judgment of the District Court will be

affirmed.




                                              7
