                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4581


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ANTOLIN RAMIREZ-RAMIREZ, a/k/a Javier Ramirez-Ramirez,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:06-cr-00137)


Submitted:    September 30, 2008            Decided:   October 14, 2008


Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Russell W. Mace, III, RUSSELL MACE & ASSOCIATES, PA, Myrtle
Beach, South Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Adam Morris, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Antolin             Ramirez-Ramirez           pled     guilty        to   illegal

reentry,    8    U.S.C.         § 1326(a),     (b)(2)       (2000),       and     received    a

sentence of sixty-eight months imprisonment.                                  He appeals his

sentence, contending that the district court plainly erred in

awarding    two    criminal          history       points    for       commission     of    the

offense while under a sentence of probation, U.S. Sentencing

Guidelines Manual § 4A1.1(d) (2006).                      We affirm.

            Because Ramirez-Ramirez did not object to his criminal

history calculation in the district court, review is for plain

error.     United States v. Olano, 507 U.S. 725, 732 (1993) (error

occurred,       which       was    plain,    affected        defendant’s          substantial

rights,    and     “seriously         affects       the     fairness,          integrity,    or

public reputation of judicial proceedings”).

            Two criminal history points are prescribed under USSG

§ 4A1.1(d) “if the defendant committed the instant offense while

under any criminal justice sentence, including probation                               . . .

.”     Application          Note     4   explains         that     a    “criminal     justice

sentence” is any “sentence countable under § 4A1.2 . . . having

a    custodial         or        supervisory        component,           although      active

supervision       is        not     required        for     this        item     to   apply.”

Application      Note       4     further   provides        that       “[a]    defendant    who

commits the instant offense while a violation warrant from a

prior sentence is outstanding (e.g., a probation . . . violation

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warrant) shall be deemed to be under a criminal justice sentence

for the purposes of this provision if that sentence is otherwise

countable, even if that sentence would have expired absent such

warrant.”    See USSG § 4A1.2(m) (same).

            Ramirez-Ramirez     acknowledges     that,    in     applying

§ 4A1.1(d), the sentencing court need not consider whether an

outstanding warrant is stale or whether state authorities were

lax in executing the warrant. See United States v. Davis, 313

F.3d 1300, 1305-06 (11th Cir. 2002); United States v. Mateo, 271

F.3d 11, 16 (1st Cir. 2001); United States v. Anderson, 184 F.3d

479, 481 (5th Cir. 1999); United States v. Elmore, 108 F.3d 23,

27-28 (3d Cir. 1997); United States v. Camilo, 71 F.3d 984 (1st

Cir. 1995).

            Ramirez-Ramirez     relies    on   the   First       Circuit’s

observation    in   Camilo    that   an   unreasonable   delay    in   the

execution of a warrant might give rise to a due process issue

under § 4A1.1(m), although not in Camilo’s case, because he was

responsible for the delay.           Camilo, 71 F.3d at 988 & n.7. *


     *
      The First Circuit later held that, “in determining whether
to add criminal history points under USSG § 4A1.1(d), a
sentencing court ordinarily is not required to look beyond the
face of the state-court record, but, rather, may give weight to
an outstanding warrant without inquiring into the validity of
that warrant.”   Mateo, 271 F.3d at 16 (noting that Camilo only
“left open the question of whether defects in a state warrant
process might be considered by the sentencing court”).



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Ramirez-Ramirez           argues           that,        unlike        Camilo,       he     was    not

responsible         for   the        delay    in       the     execution       of    the     warrant

against    him.           He      contends      that         the      § 4A1.1(d)         enhancement

violated due process in his case because (1) he did not have an

opportunity         to    have       the     warrant         set      aside    because      he    was

deported       immediately           after     he       finished        serving      his     prison

sentence; (2) he did not willfully fail to appear in court but

was prevented by his incarceration on another charge;                                     (3) state

authorities         issued      another       warrant        when      the    original       warrant

expired while he was in prison; and (4) state authorities could

have discovered his location in prison and executed the warrant.

               Because         the    district           court        was     not   required       to

consider the circumstances surrounding the warrant outstanding

against    Ramirez-Ramirez             at     the       time     of    the    instant       offense,

Ramirez-Ramirez has not identified any error on the part of the

district       court       in        adopting           that       recommendation           in    the

presentence report.               We conclude that the district court did not

err,    much    less      plainly       err,       in    determining          Ramirez-Ramirez’s

criminal history, and no due process violation occurred.

               We    therefore         affirm          the     sentence        imposed      by    the

district   court.            We      dispense       with       oral    argument      because      the

facts    and    legal      contentions          are       adequately          presented      in   the




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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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