                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 30 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 99-1325
                                                    (D.C. No. 98-CR-355-D)
    MARTIN QUIJANO-MONTIEL, also                           (D. Colo.)
    known as Martin Bais-Gonzalez, also
    know as Martin Bais, also known as
    Martin Valles,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before BALDOCK , McKAY , and BRISCOE , 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 case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the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.
       Appellant pleaded guilty to one count of illegal reentry after deportation, in

violation of 8 U.S.C. § 1326. At sentencing, appellant argued that he had only

fifteen criminal history points, rather than seventeen as identified in the initial

Presentence Investigation Report (PSR) prepared by the United States Probation

Office. He requested that the district court grant him a discretionary downward

departure pursuant to U.S.S.G. § 4A1.3 because his criminal history would be

significantly over-represented by placing him in criminal history category VI.

The district court rejected this argument, denied appellant a continuance to

present evidence concerning his criminal history points, established appellant’s

criminal history category at VI and his offense level at 21, and sentenced

appellant to seventy-seven months’ incarceration. Appellant now appeals his

sentence, challenging the district court’s refusal to grant him a continuance of the

sentencing hearing to allow him to present proof that he had only fifteen criminal

history points.

       We review the district court’s legal application of the sentencing guidelines

de novo, and its findings of fact for clear error, giving due deference to its

application of the guidelines to the facts.    See United States v. Janusz , 135 F.3d

1319, 1324 (10th Cir. 1998). We review its denial of a request for continuance

for abuse of discretion.   See United States v. Garcia , 78 F.3d 1457, 1467 (10th

Cir. 1996).


                                              -2-
       In its initial report, the Probation Office found that appellant had five prior

drug convictions, each carrying a sentence exceeding one year and one month. It

assigned him three criminal history points for each of these convictions.        See

U.S.S.G. § 4A1.1(a). It added an additional two points, for a total of seventeen

points, because the instant offense had been committed less than two years after

appellant’s release from imprisonment on a prior sentence.         See id. § 4A1.1(e). In

an addendum to its report, however, the Probation Office accepted appellant’s

argument that his most recent conviction, from Denver County, Colorado, should

only count for one point rather than three because the sentencing court had

ordered him released to the custody of the Immigration and Naturalization Service

immediately after imposition of sentence.    1
                                                  It thus assigned a total of fifteen

criminal history points to appellant.

       Despite the position of the Probation Office, the Government continued to

argue at sentencing that appellant had seventeen criminal history points.

Appellant disputed this and requested a continuance to present a transcript of his

sentencing for the Denver County, Colorado offense to prove that it was only a


1
      Appellant cites U.S.S.G. § 4A1.2(b)(2), which provides that if part of a
sentence was suspended, the “sentence of imprisonment” refers only to the
portion not suspended. Thus, a sentence never served because of deportation
would arguably not constitute a sentence of more than one year and one month
and would therefore qualify for only one criminal history point. See id.
§ 4A1.1(c). In light of our disposition, we need not determine whether
appellant’s reading of the Guidelines on this point is correct.

                                            -3-
one-point offense. The district court assessed appellant’s criminal history score

at seventeen and denied the continuance. It then rejected appellant’s request for a

downward departure, which he sought on the basis that category VI

over-represented the seriousness of his criminal history.

       Appellant admits that even with the criminal history point score of fifteen

that he sought, he would still have a score placing him in category VI, reserved

for criminal histories of thirteen points or more.   See U.S.S.G. Ch. 5, pt. A

(sentencing table). He argues, however, that had he been given a continuance to

prove that he actually had a criminal history score of fifteen points, the district

court might have been more willing to depart downward in his favor. This

reasoning is belied by the district court’s clear comments at sentencing:

       I don’t think his past criminal history overrepresents his criminal
       history. Even if I continued this and gave you a chance to get
       something that might change the Court’s ruling on the suspension
       issue, I think that’s irrelevant to what his criminal history category
       actually is, because I’m not inclined to find that even if it’s at 15,
       that it overrepresents the seriousness of his past criminal history or
       his propensity to commit further crimes which is the dual prong that
       the Court should look at.

R. Vol. II at 17.

       The court later fortified these comments:



       I find absolutely no merit to the argument with or without the issue
       about whether or not the suspension should occur that would support
       that the defendant’s past criminal history overrepresents the

                                             -4-
       seriousness of his past criminal history because the Court believes it
       does not.

Id. at 22.

       Given the district court’s conclusion that the additional evidence appellant

sought to present could have no effect on its discretionary decision not to depart

downward, it did not abuse its discretion in denying the continuance. We lack

jurisdiction, moreover, to review the merits of the district court’s decision not to

depart downward.    See, e.g. , United States v. Fortier , 180 F.3d 1217, 1231 (10th

Cir. 1999).

       The judgment of the United States District Court for the District of

Colorado is therefore AFFIRMED.



                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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