                       IN THE UNITED STATES COURT OF APPEALS

                                    FOR THE FIFTH CIRCUIT



                                           No. 00-20408




UNITED STATES OF AMERICA
                                                                   Plaintiff-Appellee

                                             VERSUS

JUAN ANTONIO YERA
                                                                   Defendant-Appellant



                           Appeal from the United States District Court
                               For the Southern District of Texas
                                         H-00-CR-234


                                           June 25, 2001


Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and DUPLANTIER,* District Judge


DUPLANTIER, District Judge:**

       Juan Antonio Yera appeals his conviction and sentence on one count of aiding and

abetting in the possession of 500 grams or more of a mixture and substance containing a detectable



       * District Judge of the Eastern District of Louisiana, sitting by designation.

       **Pursuant to 5th Cir. R. 47.5, the court has det ermined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
amount of cocaine with intent to distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C.

§§ 841(a)(1), (b)(1)(B)(ii). For the reasons that follow we affirm defendant’s conviction but

conclude that the district judge incorrectly calculated defendant’s criminal history score. Accordingly,

we reverse defendant’s sentence and remand for resentencing.

        Pursuant to a New Jersey warrant, DEA agents in Houston, Texas arrested Angel Cardonas;

he cooperated with the DEA agents and identified Willie Lahera as his cocaine supplier. Shortly after

Cardonas identified Lahera, a Fort Bend County deputy stopped Lahera, who immediately began

cooperating with the DEA agents. Lahera identified Alexander Vivot as his source of cocaine.

Working with the DEA agents, Lahera phoned Vivot seeking to purchase cocaine. Vivot made the

arrangements to have the cocaine delivered to his home.           Defendant Juan Yera and Barbara

Rodriguez delivered the cocaine to Vivot’s house.

        In an unmarked vehicle, DEA agents transported Lahera to Vivot’s neighborhood; Lahera

identified Yera and Rodriguez when they arrived at Vivot’s house. After Yera and Rodriguez arrived

at Vivot’s home, Lahera called Vivot and cancelled the cocaine order. Shortly after Lahera cancelled

the order, Yera and Rodriguez left Vivot’s house and drove away. Thereafter police stopped the

vehicle Yera was driving and in which Rodriguez was a passenger. Yera consented to a search of the

vehicle; law enforcement officers found a digital scale in the glove compartment. Rodriguez

consented to a search of her purse, where DEA agents found two large plastic bags containing 1.4

kilograms of cocaine and a plastic bag containing a small amount of cocaine. Yera, Rodriguez, and

Vivot were arrested; each was indicted on one count of aiding and abetting in the possession of 500

grams or more of a mixture and substance containing a detectable amount of cocaine with intent to

distribute, in violation of 18 U.S.C. § 2 and 21 U.S.S. §§ 841(a)(1), (b)(1)(B)(ii).


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        Vivot and Rodriguez pleaded guilty to the indictment. Yera elected to proceed to trial. On

the second day of the trial Yera accepted the government’s offer to plead guilty pursuant to Rule

11(e)(1)(C) of the Federal Rules of Criminal Procedure to the single count of the indictment and be

sentenced at a maximum offense level of 28. The government also agreed not to oppose a two level

reduction for acceptance of responsibility if the probation officer recommended such a reduction.

The district judge accepted the guilty plea and declared a mistrial. However, she declined to accept

the plea agreement until she reviewed the presentence report, and she advised the defendant that if

she refused to accept the plea agreement she would permit him to withdraw his guilty plea. Because

the presentence report indicated a base offense level of 30, the district judge refused to accept the

plea agreement.

        Thereafter Yera withdrew his guilty plea. After a second trial, the jury convicted Yera.

Accepting the findings in the presentence report of a total offense level of 30 and five criminal history

points, the district judge sentenced defendant to a 121 month term of imprisonment, a five year term

of supervised release, a $10,000 fine, and a $100 special assessment.

                       CALCULATION OF CRIMINAL HISTORY SCORE

        Yera contends that the district judge improperly calculated his criminal history score by adding

four points for two sentences resulting from guilty pleas entered in state court on December 9, 1988.

The addition of those four criminal history points elevated defendant’s criminal history from category

I to category III. Yera urges that pursuant to United States Sentencing Guidelines (U.S.S.G.)

§4A1.2(e) those convictions are too remote in time from the instant criminal activity to be factored

into the criminal history score.

        Before the district court Yera objected to the inclusion of those two prior sentences in the


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determination of his criminal history score. The district judge overruled defendant’s objection.

       We review the district court’s application of the Sentencing Guidelines de novo. United

States v. Ocana, 205 F.3d 585, 588 (5th Cir.), cert. denied       U.S.       , 121 S.Ct. 192 (2000).

        U.S.S.G. §4A1.2(e) sets out the applicable time periods during which prior sentences may

be counted in calculating a defendant’s criminal history score. It provides in pertinent part:

               (1) Any prior sentence of imprisonment exceeding one year and one
               month that was imposed within fifteen years of the defendant’s
               commencement of the instant offense is counted. Also count any prior
               sentence of imprisonment exceeding one year and one month,
               whenever imposed, that resulted in the defendant being incarcerated
               during any part of such fifteen-year period.

               (2) Any other prior sentence that was imposed within ten years of the
               defendant’s commencement of the instant offense is counted.

               (3) Any prior sentence not within the time periods specified above is
               not counted.

U.S.S.G. §4A1.2(e).

               Some additional background information is necessary to analyze this issue. When

Yera pleaded guilty to the two prior state offenses on December 9, 1988, the state judge sentenced

him to a two and one half year term of imprisonment for each conviction but stayed the execution of

those sentences until January 3, 1989, with the understanding that if Yera self surrendered on January

3, 1989, each sentence would be reduced to one year and one day. Yera self surrendered on January

3, 1989. Thereafter on April 12, 1989, judgments "NUNC PRO TUNC: January 3 1989" were

entered mitigating each sentence to one year and one day.

       There is no dispute that the April 12 nunc pro tunc judgments completely vitiated the

sentences of December 9, 1989; the applicable sentences for purposes of determining defendant’s



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criminal history points are the sentences of one year and one day. Because those sentences are for

less than thirteen months, U.S.S.G. § 4A1.2(e)(1) is not applicable, and those sentences are factored

into defendant’s criminal history score only if they were "imposed within ten years of the defendant’s

commencement of the instant offense." U.S.S.G. § 4A1.2(e)(2).

       To determine whether the sentences fall within the ten year period of §4A1.2(e)(2), we must

determine whether the sentences "were imposed within ten years of the defendant’s commencement

of the instant offense." The Sentencing Guidelines do not define when a sentence is "imposed" for

purposes of §4A1.2(e)(2); however, they do define "prior sentence" as "any sentence previously

imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendre, for

conduct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1).

       The government urges that because defendant’s sentences were modified on April 12, 1989

to a year and a day, the ten year period commences April 12, 1989. However, that analysis ignores

the fact that the sentencing court ordered the sentencing modifications to be "nunc pro tunc January

3, 1989." Black’s Law Dictionary 1097 (7th ed. 1999) defines . "nunc pro tunc" as "now for then,"

and that is the meaning commonly understood. By virtue of the nunc pro tunc judgments of April

12, each of the prior sentences was "imposed" on January 3, 1989, a date more than ten years prior

to the commencement of the instant offense. Therefore, under § 41A.2(e)(2) no criminal history

points should have been assigned as a result of those sentences, and the district judge erred in doing

so.

       In his brief defendant raised several issues challenging his conviction.. After carefully

reviewing the record, and considering the briefs and oral arguments, we conclude that those

contentions lack merit and require no further discussion. Accordingly, we affirm defendant’s


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conviction, reverse defendant’s sentence and remand this case for resentencing.




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