                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAR 28 2000
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                           No. 98-4225
                                                  (D. Ct. No. 98-CR-367)
 CARLOS SALAZAR-MEDINA,                                  (D. Utah)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and HENRY, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in 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 appeals the district court’s enhancement of his sentence for

illegal re-entry based on a prior conviction. We exercise jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), and affirm.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
                                         I.

      In 1997, a Washington state court sentenced defendant, an illegal alien, for

distribution of a controlled substance. The Immigration and Naturalization

Service subsequently deported him. Defendant then illegally re-entered the

United States. Eventually, Utah undercover detectives arrested him for selling

cocaine. On July 1, 1998, a jury convicted defendant of distribution and

possession of cocaine. A Utah state court sentenced defendant to thirty days in

jail and thirty-six months’ probation. Shortly thereafter, the United States

indicted defendant for illegal re-entry in violation of 8 U.S.C. § 1326, and

defendant pled guilty.

      Defendant’s Presentence Report (PSR) recommended a base offense level

of 21: 8 points for unlawfully entering or remaining in the United States, 16

points for a previous deportation after conviction in Washington state for an

aggravated felony, and -3 points for acceptance of responsibility. The PSR

further recommended a criminal history category of IV based on a criminal

history score of 7: 3 points for defendant’s Washington conviction, 1 point for

defendant’s Utah conviction, 2 points for committing an offense while on

probation, and 1 point for committing an offense less than two years after release

from prison.

      At sentencing, defendant objected to the addition of one criminal history


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point for his Utah conviction. He claimed that the district court should not count

his Utah conviction as a prior offense because the Utah offense occurred at the

same time and during the same course of conduct as the illegal re-entry offense.

The district court denied the objection, and defendant now appeals his sentence.

                                         II.

      We review de novo a district court’s legal interpretation of the guidelines,

and we review for clear error its underlying factual findings. United States v.

Cuthbertson, 138 F.3d 1325, 1326 (10th Cir. 1998). Defendant contends the

district court erred in treating his Utah drug conviction as a prior offense in

calculating the criminal history portion of his guideline sentence. We disagree.

      The United States Sentencing Guidelines (“U.S.S.G.”) provide that a

district court should use a defendant’s “prior sentence” in calculating his criminal

history. U.S.S.G. Manual § 4A1.1 (1998). Section 4A1.2(a)(1) defines a prior

sentence as “any sentence previously imposed upon adjudication of guilt . . . for

conduct not part of the instant offense.” Conduct is part of the instant offense

only if it is “relevant conduct” to the instant offense. Id. § 4A1.2 commentary

n.1. Thus, “a conviction will not be treated as a prior sentence (and no criminal

history points can be added) so long as the underlying conduct meets the

definition of relevant conduct.” United States v. Keifer, 198 F.3d 798, 801 (10th

Cir. 1999).


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      Defendant claims that his Utah conviction constitutes relevant conduct as

defined in U.S.S.G. § 1B1.3(a)(2). Under this section, conduct is relevant only if

three prerequisites are met.

             First, there must be a finding that the offense in question
             involved conduct described in §§ 1B1.3(a)(1)(A) and (B).
             Second, the offense must be the type of offense that, if
             the defendant had been convicted of both offenses, would
             require grouping with the offense of conviction for
             sentencing purposes under U.S.S.G. § 3D1.2(d). Third,
             the offense must have been “part of the same course of
             conduct or common scheme or plan.”

United States v. Taylor, 97 F.3d 1360, 1363 (10th Cir. 1996) (quoting U.S.S.G.

§ 1B1.3(a)(2)).

      Here, the district court found that defendant’s Utah drug conviction and the

instant offense of illegal re-entry were not sufficiently connected or related to be

considered part of the same course of conduct. Therefore, the district court held

that defendant’s prior Utah conviction did not constitute relevant conduct.

      Two offenses are part of the same course of conduct where there is

“sufficient similarity and temporal proximity [between the acts] to reasonably

suggest that repeated instances of criminal behavior constitute a pattern of

criminal conduct.” Id. at 1365 (internal quotation marks and citation omitted).

Commentary to the Guidelines further provides that

             [o]ffenses . . . may . . . qualify as part of the same course
             of conduct if they are sufficiently connected or related to
             each other as to warrant the conclusion that they are part

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             of a single episode, spree, or ongoing series of offenses.
             Factors . . . to be considered . . . include the degree of
             similarity of the offenses, the regularity (repetitions) of the
             offenses, and the time interval between the offenses.

U.S.S.G. § 1B1.3 commentary n.9(B).

      The offenses of illegal re-entry and distribution and possession of cocaine

are not similar. Although defendant committed these crimes within a relatively

short time interval, these offenses do not suggest a pattern of criminal conduct or

warrant the conclusion that they are part of a single episode, spree, or ongoing

series of offenses. Thus, we conclude the district court did not clearly err in

finding that defendant’s Utah conviction and his illegal re-entry offense were not

part of the same course of conduct. The district court’s “course of conduct”

finding was sufficient to preclude defendant from meeting the prerequisites of the

§ 1B1.3(a)(2) relevant conduct test. See Keifer, 198 F.3d at 802. Accordingly,

the district court properly used defendant’s Utah conviction to calculate his

sentence.

      AFFIRMED.

                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Circuit Judge




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