                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               NOV 6 1997
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                          No. 97-4040
          v.                                                    D. Utah
 OSCAR JIMINEZ-TORRES, also known                   (D.C. No. 96-CR-242-001-B)
 as Miguel Martinez-Salcido, also known
 as David Gallegos-Salcido, also known as
 Jorge Jiminez-Soza,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. This cause 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        This order and judgment is not binding precedent, except under the doctrines of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.
      On January 16, 1997, Oscar Jiminez-Torres pleaded guilty to a violation of

8 U.S.C. § 1326, Illegal Re-Entry of Deported Alien. The Pre-Sentence

Investigation Report (PSR) assessed ten criminal history points, resulting in a

criminal history category of V and a sentencing range of 70-87 months

imprisonment. The district court sentenced Jiminez-Torres to 70 months

imprisonment, a $3,000 fine, and three years supervised release with the

expectation that he would be deported after his imprisonment. Jiminez-Torres

appeals the sentence, arguing that two of the criminal history points were

incorrectly assessed because they were based on a prior misdemeanor conviction

at which he had not validly waived his right to counsel.

      The two disputed points were based on a prior state conviction of

disturbing the peace and driving without insurance. PSR ¶ 25. Jiminez-Torres

objected to the PSR’s description of the conviction, which stated that he had

waived his right to counsel. See Addendum to PSR at 1. In response, the

probation officer submitted two additional documents, “Addendum to the

Presentence Report” and “Response to the Supplemental Position of the

Defendant with Respect to Sentencing Factors,” which offered further evidence

that Jiminez-Torres had waived his right to counsel at the state proceeding.

      At the sentencing hearing in this case, the government argued that

Jiminez-Torres had waived his right to counsel at the state proceeding because he


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watched a video in Spanish explaining his right to counsel, met with a public

defender prior to the proceeding, and told the public defender that he did not want

an attorney. R. Vol. II at 5, 20. Counsel for Jiminez-Torres essentially admitted

that defendant had seen the video and that he had refused the public defender’s

offer of representation. Id. at 8, 11. But counsel argued that Jiminez-Torres had

only refused representation by that specific public defender and that because the

state judge did not inquire as to Jiminez-Torres’ decision to waive his right to

counsel, he had not waived that right. R. Vol. II at 5-16.

      The district court found that Jiminez-Torres had validly waived his right to

representation at the prior conviction hearing and that the two-point assessment

was, therefore, appropriate. Id. at 22-23. The judge then sentenced him under

criminal history category V, which included the prior state misdemeanor

conviction. Id.

      The district court also sentenced Jiminez-Torres in the alternative, stating:

      Let me also say, so it is clear, in the Court’s view the conduct of
      conviction here to which the plea of guilty was earlier taken, taken in
      conjunction with this defendant’s criminal history, requires a
      sentence in this judge’s opinion of about 70 months. That is the
      lowest end of the guideline range under category five. Even if I were
      to find that the offense described in paragraph 25 of the presentence
      report and the one that we have been talking about here today should
      not have been included, which would reduce the criminal history
      category to a four rather than a five, even if I found that I would still
      impose a 70-month sentence, it being my judgment that that is the
      punishment that fits this crime given Mr. Jiminez-Torres’
      background.

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             And, frankly, this incident that we have been talking about is
      not the criminality in his past that drives my decision. So if the
      range were 57 to 71 months, as it would be if I didn’t include that
      incident, I would still impose a sentence of 70 months.

             It is an interesting academic question you have given us, Mr.
      Breeze, and there may be something out there. One reason for my
      desire to proceed today is that I know it won’t make any difference to
      the sentence and I would just as soon get Mr. Jiminez-Torres on his
      way. We would just be spending our time for no practical reason
      other than to try to sort this out.

R. Vol. II at 24-25.

      We have stated repeatedly that even if the district court erred in considering

an invalid factor in sentencing, we will not remand if we are convinced the

district court would impose the same, reasonable sentence absent the invalid

factor. See United States v. Medina-Estrada, 81 F.3d 981, 987 (10th Cir. 1996);

United States v. O’Dell, 965 F.2d 937, 939 (10th Cir. 1992); United States v.

Mondaine, 956 F.2d 939, 943 (10th Cir. 1992); United States v. Urbanek, 930

F.2d 1512, 1515-16 (10th Cir. 1991); see also Koon v. United States, 116 S. Ct.

2035, 2053-54 (1996); Williams v. United States, 503 U.S. 193, 202-03 (1992).

The district court explicitly stated that it would impose the identical sentence

even if it applied criminal history category IV, as Jiminez-Torres had requested.

The sentencing range for offense level 21 and category IV is 57-71 months, with a

fine range and a supervised release range identical to the ranges imposed for

offense level 21 and criminal history category V. We do not find, nor does


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Jiminez-Torres argue, that an incorrect imposition of criminal history category V

will harm him in any way other than that at resentencing the court could impose a

lower sentence. We conclude it is unnecessary to pursue the waiver issue since

we are satisfied that the district court would impose the same sentence and that a

remand would only waste judicial resources.

         For the foregoing reasons, we AFFIRM the sentence imposed by the district

court.

                                               ENTERED FOR THE COURT



                                               Stephen H. Anderson
                                               Circuit Judge




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