                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                  AUG 19 2003
                                TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk
 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                              No. 02-4247
 v.                                                   (D.C. No. 2:01-CR-702-PGC)
                                                                (D. Utah)
 RAFAEL DELGADO-MORALES,

               Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Defendant Rafael Delgado-Morales appeals the sentence imposed after his plea of

guilty to illegal reentry following prior deportation, in violation of 8 U.S.C. § 1326(a).

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
       Defendant contends the district court erred in calculating his criminal history score

when sentencing him to a term of imprisonment of 57 months. In calculating his

sentence, the district court awarded a total of six criminal history points – three points for

his sentences on two related drug-trafficking convictions and three points for his sentence

on a failure-to-appear conviction. Defendant argues the sentences on the three prior

convictions should have been considered “related” under U.S.S.G. § 4A1.2(a)(2) because

the underlying charges were consolidated for trial, and sentencing on the three

convictions occurred at the same time. Thus, defendant asserts his criminal history score

should have been three rather than six.

       Generally speaking, a district court’s finding that prior sentences are “related” or

“unrelated” for purposes of § 4A1.2(a)(2) is a factual determination that we review only

for clear error. See United States v. Alberty, 40 F.3d 1132, 1133 (10th Cir. 1994). To the

extent the district court’s determination involves legal conclusions regarding the

application and interpretation of the Sentencing Guidelines, including the meaning of the

terms “related” and “unrelated,” we exercise plenary review. Id.

       Section 4A1.2 of the Sentencing Guidelines contains instructions for computing a

defendant’s criminal history score. In particular, subsection (2) provides that “[p]rior

sentences imposed in unrelated cases are to be counted separately.” U.S.S.G. § 4A1.2(2).

In contrast, “[p]rior sentences imposed in related cases are to be treated as one sentence.”

Id. Application Note 3 explains when prior sentences are to be considered “related” or


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“unrelated”:

       Prior sentences are not considered related if they were for offenses that
       were separated by an intervening arrest (i.e., the defendant is arrested for
       the first offense prior to committing the second offense). Otherwise, prior
       sentences are considered related if they resulted from offenses that (A)
       occurred on the same occasion, (B) were part of a single common scheme
       or plan, or (C) were consolidated for trial or sentencing.

Id., cmt. n.3.

       Defendant’s drug-trafficking offenses occurred on November 4, 1989, when he

hired a female to drive a van loaded with marijuana across the United States border from

Mexico. The marijuana in the van was discovered at the point of entry by border patrol

officers, and defendant was arrested that same day. After being released on bond on July

25, 1990, defendant failed to appear for trial on the drug-trafficking charges. He was

arrested on March 4, 1991, and charged with failure to appear. Although it is true, as

noted by defendant, that all of the charges were consolidated for trial and sentencing, that

factor is irrelevant since the underlying offenses were separated by an intervening arrest.

Thus, as directed by Application Note 3, the district court properly determined that

defendant’s sentence on the failure-to-appear conviction was “unrelated” to his sentences

on the drug-trafficking convictions.

       AFFIRMED.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge


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