     Case: 14-40678      Document: 00513082822         Page: 1    Date Filed: 06/17/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40678
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 17, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JUAN JOSE ANZUETO-BARRIOS, also known as Jose Adolfo Perez-Vasquez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:14-CR-388-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Juan Jose Anzueto-Barrios pleaded guilty to being found in the United
States after deportation in violation of 8 U.S.C. § 1326 and was sentenced to
37 months of imprisonment with no supervised release.                   Anzueto-Barrios
argues that the district court misapplied the Sentencing Guidelines when it
added two points to his criminal history score under U.S.S.G. § 4A1.1(d)




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-40678

because he was no longer under his sentence of probation for his 2007
California conviction.
      Section 4A1.1(d) of the Sentencing Guidelines provides that two points
shall be added to a defendant’s criminal history score “if the defendant
committed the instant offense while under any criminal justice sentence,
including probation, parole, supervised release, imprisonment, work release,
or escape status.” The Application Notes state that § 4A1.1(d) applies “if the
defendant committed any part of the instant offense (i.e., any relevant conduct)
while under any criminal justice sentence, including probation.” § 4A1.1, cmt.
n.4. For purposes of § 4A1.1(d), if a defendant commits the instant offense
while a violation warrant from a prior sentence is outstanding (e.g., a
probation, parole, or supervised release violation warrant), he shall be deemed
to be under a criminal justice sentence if that sentence is otherwise countable,
even if that sentence would have expired absent the violation warrant.
U.S.S.G. § 4A1.2(m); see also § 4A1.1, cmt. n. 4.
      In August of 2007, Anzueto-Barrios was sentenced to 50 days in custody,
which sentence was suspended, and he was placed on probation for 36 months.
Anzueto-Barrios was deported on November 2, 2007. His term of probation
was revoked in absentia, and an arrest warrant was issued and remained
outstanding pending his sentencing on the probation violation. Based on these
facts, Anzueto-Barrios argues that § 4A1.1(d) and § 4A1.2(m) do not apply
because his probation was revoked and there was no longer an outstanding
probation violation warrant. The Government argues that the warrant for
Anzueto-Barrios’s arrest pending sentencing on the probation revocation was
outstanding and that his original judgment and sentence were in full force and
effect when he committed this § 1326 offense. Because the parties do not
dispute the facts but only whether the particular Guideline applies based on



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                                 No. 14-40678

those facts, we review this issue de novo. United States v. Gonzales, 40 F.3d
735, 738 (5th Cir. 1994), abrogated on other grounds by United States v.
Dunigan, 555 F.3d 501 (5th Cir. 2009).
      Anzueto-Barrios cannot avoid the 2-point enhancement at issue here; his
attempt is an exercise in creative labeling and nothing more. The Sentencing
Guidelines provide that “[w]here a defendant has been convicted of an offense,
but not yet sentenced, such conviction shall be counted as if it constituted a
prior sentence under § 4A1.1(c) if a sentence resulting from that conviction
otherwise would be countable.” § 4A1.2(a)(4). The revocation of Anzueto-
Barrios’s probation placed him in the same position as if he were convicted
awaiting sentencing: a lawful, valid judgment against him for which he is yet
to be sentenced.     That is, he was essentially “convicted” for violating his
probation. If a conviction is countable before sentencing, then a defendant is
under a “criminal justice sentence” before sentencing for purposes of
§ 4A1.1(d), whether it is an original sentencing or a sentencing on a probation
violation.
      This commonsense holding also avoids creating perverse incentives. In
United States v. Anderson, 184 F.3d 479, 481 (5th Cir. 1999) (internal
quotations omitted), we held that
      [i]n determining whether an outstanding violation warrant
      triggers a two-point increase, the Guidelines do not require us to
      assess the state authorities’ diligence in executing a violation
      warrant. Rather the two-point increase applies to any defendant
      who commits the instant offense while a violation warrant from a
      prior sentence is outstanding.
If Anzueto-Barrios’s probation violation warrant had been pending upon his
illegal reentry and had not been acted upon with the in absentia revocation,
then § 4A1.1(d) and § 4A1.2(m) would apply based on Anderson. However, in
this case, although the term of probation was revoked, an arrest warrant



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                                 No. 14-40678

pending sentencing on the probation revocation was issued and still in effect.
Under Anzueto-Barrios’s proposal if the State does not act with diligence on a
revocation warrant, the existence of the outstanding warrant means that the
defendant is still under a criminal justice sentence under § 4A1.1(d), but if the
State moves forward with the revocation in absentia, revokes probation, and
issues an arrest warrant for the defendant pending sentencing on the
probation violation, the defendant is no longer under a criminal justice
sentence. Such a result would be incoherent.
      Further, Anzueto-Barrios was under a criminal justice sentence within
the meaning of § 4A1.1(d) based on his original 50-day sentence.          Under
California law, if a sentence has been imposed and its execution suspended, as
was done in this case, the revocation of the suspension brings the former
judgment into full force and effect. See People v. Howard, 946 P.2d 828, 832
(Cal. 1997).   Anzueto-Barrios argues that the summary revocation of his
probation should not be treated as automatically imposing the previously
imposed but suspended custody sentence; however, he does not explain what
his status would then be post-revocation and pre-sentencing. The original
criminal justice sentence of 50 days of imprisonment did not cease to exist upon
the summary revocation of his probation. Upon revocation of his probation,
Anzueto-Barrios was, by operation of law, “under” his original “criminal justice
sentence.”
      We reached a similar conclusion in United States v. Mota-Aguirre,
186 F.3d 596, 598-99 (5th Cir. 1999). The defendant there was granted an
“Out-of-Country Conditional Pardon,” releasing him from prison for immediate
deportation; the sentence remained in effect while the defendant was granted
liberty from confinement as long as he abided by the specified restrictions
contained in his pardon.     He violated those conditions when he illegally



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reentered the United States six months after his conditional pardon. Id. at
598-99. We concluded that the district court properly classified the conditional
pardon as a criminal justice sentence under § 4A1.1(d). Id. at 599. Similarly,
Anzueto-Barrios was sentenced to 50 days of imprisonment, suspended in favor
of probation, but he was determined to have violated his probation, and the
original sentence remains effective for purposes of § 4A1.1(d). See Howard,
946 P.2d at 832.
      We conclude that Anzueto-Barrios was under a criminal justice
sentence—either by virtue of the probation violation or his original 50-day
sentence—within the meaning of § 4A1.1(d) when he reentered this country
illegally. The district court did not err in applying this Guideline adding two
points to his criminal history score.
                                                                  AFFIRMED.




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