                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 5 2001
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         Nos. 99-6453
    v.                                                           &
                                                              00-6019
    SHAWN LENARDO LAW,                               (D.C. No. CR-99-68-T)
                                                          (W.D. Okla.)
                Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before BRORBY , PORFILIO , and BALDOCK , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

         Defendant pleaded guilty to possession with intent to distribute cocaine

base in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to



*
      This order and judgment is not binding precedent, except under the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.
292 months imprisonment, followed by five years of supervised release. It also

assessed a monetary penalty and required defendant to participate in a substance

abuse program. In this appeal, defendant challenges the district court’s

calculation of his criminal history points in determining his sentence under the

United States Sentencing Guidelines (USSG).

       On appeal, “[w]e review the district court’s legal interpretation of the

guidelines de novo and review its findings of fact for clear error, giving due

deference to the district court’s application of the guidelines to the facts.”   United

States v. Janusz , 135 F.3d 1319, 1324 (10th Cir. 1998) (citations omitted).

Guided by these standards, we affirm.

       Defendant makes two challenges to the district court’s calculation of his

criminal history points. First, he argues that he should have received only three

points, instead of nine, for three drug-related convictions in Oklahoma state court.

He maintains that, since the three cases were consolidated for sentencing purposes

and the sentences on the three convictions ran concurrently, the sentences were

in related cases and should have been treated as one sentence instead of three.

See USSG § 4A1.2(a)(2). Defendant misreads the commentary to § 4A1.2 in

making this argument. Application note 3 following that section states that

“[p]rior sentences are not considered related if they were for offenses that

were separated by an intervening arrest,” as these three sentences were.


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USSG § 4A1.2, comment. (n.3). Prior sentences are considered related if they

are consolidated for sentencing purposes    only if there was no intervening arrest.

Id. (“Otherwise , prior sentences are considered related if they resulted from

offenses that . . . were consolidated for trial or sentencing.” (emphasis added)).

Consequently, the district court correctly counted the three sentences separately

for purposes of § 4A1.2, and it properly assessed a total of nine criminal history

points for them.

       Next, defendant argues that the district court improperly assessed one

criminal history point for his misdemeanor conviction for driving with a

suspended license. He contends that the conviction should not have been counted

as a prior sentence under § 4A1.1 because that sentence was not imposed within

ten years of the instant offense, as required by § 4A1.2(e)(2). This argument fails

because it is the commencement of the instant offense, not the conviction or

sentence for the instant offense, that must occur within ten years from imposition

of the prior sentence.   Id. The evidence before the district court indicated that

plaintiff commenced the instant offense as early as January 1996. Consequently,

the district court correctly added one criminal history point for defendant’s 1989

misdemeanor conviction.

       In addition to defendant’s arguments on appeal, this court ordered

supplemental briefing on the issue of whether his one-year suspended sentence for


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driving with a suspended license qualified as a prior sentence under §§ 4A1.1(c)

and 4A1.2(c)(1)(A). We do not address this issue, however, because even if the

one point for that sentence were subtracted, thus reducing defendant’s

criminal-history-point total from fifteen to fourteen, his criminal history category

would still be VI and the sentencing guideline range would remain the same.

See United States v. Williams , 919 F.2d 1451, 1458 (10th Cir. 1990) (declining to

address sentencing issue where criminal history category and resulting guideline

range would remain unchanged).

      Finally, we must address a procedural problem with these consolidated

appeals. Defendant filed a timely   pro se notice of appeal in No. 99-6453. The

notice of appeal in No. 00-6019, which was filed by defendant’s counsel, was not

filed within the ten-day filing period, and no permissible extension of the

deadline was granted.   See Fed. R. App. P. 4(b)(1)(A) & (a)(5)(A). Consequently,

we lack appellate jurisdiction over No. 00-6019.   See Budinich v. Becton

Dickinson & Co. , 486 U.S. 196, 203 (1988).




                                           -4-
      In sum, we hold that the district court’s calculation of defendant’s sentence

under the guidelines was correct. Consequently, we AFFIRM the district court’s

judgment in No. 99-6453. We DISMISS No. 00-6019 for lack of jurisdiction.



                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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