                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAR 17 2000
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 99-1355
 JAVIER LOPEZ-CARREON,                            (D.C. No. 99-CR-125-B)
                                                         (D. Colo.)
          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BALDOCK, HENRY, and LUCERO, Circuit Judges. **


      Defendant Javier Lopez-Carreon pled guilty to illegal reentry after

deportation in violation of 8 U.S.C. § 1326(a). The district court sentenced

Defendant to 57 months imprisonment. Defendant appeals the district court’s

addition of 2 points to his criminal history pursuant to U.S.S.G. § 4A1.1(d) for



      *
        This order and judgment is not binding precedent, except under the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.
      **
          After examining the briefs and appellate record, the panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The
case is therefore ordered submitted without oral argument.
committing an offense while under a criminal justice sentence. We exercise

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and affirm.

                                          I.

      Defendant is a citizen of Mexico. On June 30, 1997, Defendant pled guilty

to possession with intent to distribute a controlled substance in violation of Colo.

Rev. Stat. § 18-18-405(2)(a)(I). The state court sentenced Defendant to 5 years in

prison, suspended on the condition that Defendant be deported to Mexico.

Thereafter, Defendant illegally reentered the United States. Defendant was again

apprehended in Colorado, and on March 1, 1999, Defendant pled guilty to

possession of a controlled substance. The state court sentenced Defendant to 4

years in prison, again suspended on the condition that Defendant be deported to

Mexico. Rather than immediately instituting deportation proceedings, the state

delivered Defendant to federal custody for prosecution for illegal reentry after

deportation.

      Defendant pled guilty to the illegal reentry charge. Over Defendant’s

objection, the district court adopted the presentence report’s recommendation and

added 2 criminal history points pursuant to U.S.S.G. § 4A1.1(d). Section

4A1.1(d) provides for the addition of 2 criminal history points “if the defendant

committed the instant offense while under any criminal justice sentence, including

probation, parole, supervised release, imprisonment, work release, or escape


                                         -2-
status.” Id. The commentary notes define “criminal justice sentence” to include

any sentence with “a custodial or supervisory component, although active

supervision is not required for this item to apply.”     Id. at § 4A1.1(d) comment.

(n.4). “For example, a term of unsupervised probation would be included; but a

sentence to pay a fine, by itself, would not be included.”       Id. The district court

added another point to Defendant’s criminal history because Defendant

“committed the instant offense less than two years after release from

imprisonment on a sentence counted under [§ 4A1.1(b)] . . . .”         Id. at § 4A1.1(e).

The general rule under the guidelines is to add 2 points.       Id. If the district court

has already added 2 points under § 4A1.1(d), then the district court only adds 1

point under § 4A1.1(e).    Id. The district court found that Defendant had 8

criminal history points, resulting in a criminal history category of IV. Category

IV covers the range of 7 to 9 criminal history points.       Id. at § 5A.

                                             II.

       Defendant argues that the district court erred in adding 2 criminal history

points for commission of an offense while under a criminal justice sentence. He

argues that he was not under a criminal justice sentence because his sentence had

been suspended on the condition of deportation. The Government argues that this

court should affirm Defendant’s sentence because the district court’s application

of § 4A1.1(d) had no effect on Defendant’s criminal history category.


                                             -3-
      If Defendant prevailed on his claim that he was not under a criminal justice

sentence at the time he committed the offense, then the district court could not

add 2 points pursuant to § 4A1.1(d). Under § 4A1.1(e), however, the district

court would then add 2 points rather than 1 for commission of an offense within

two years of release. Defendant would have 7 criminal history points, still

resulting in a criminal history category of IV. Because Defendant’s criminal

history category remains the same, we do not need to resolve this criminal history

dispute. See United States v. Ortiz , 63 F.3d 952, 955 (10th Cir. 1995) (holding

that the court did not have to reach the criminal history issue because even if the

court found for defendant and subtracted one criminal history point, he would

remain within the same criminal history category). We affirm Defendant’s

sentence.

      AFFIRMED.



                                       Entered for the Court,



                                       Bobby R. Baldock
                                       Circuit Judge




                                         -4-
