UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 98-4634

JESSE GRANT STEVENS, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert Earl Maxwell, Senior District Judge.
(CR-97-9)

Submitted: March 23, 1999

Decided: May 3, 1999

Before NIEMEYER and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed in part and dismissed in part by unpublished per curiam
opinion.

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COUNSEL

Michelle Roman Fox, Elkins, West Virginia, for Appellant. William
D. Wilmoth, United States Attorney, Sherry L. Muncy, Assistant
United States Attorney, Elkins, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Jesse Grant Stevens, Jr., pled guilty to one count of making a false
statement to a firearms dealer, see 18 U.S.C.A. § 922(a)(6) (West
Supp. 1998), and received a sentence of 92 months imprisonment. He
appeals his sentence, arguing that the district court erred in determin-
ing his offense level under U.S. Sentencing Guidelines Manual
§ 2K2.1 (1997), in determining his criminal history, and in deciding
against a departure on two grounds urged by Stevens. We affirm in
part and dismiss in part.

Stevens bought two rifles and a shotgun on July 15, 1995. In con-
nection with the purchase he stated that he had not been convicted of
a felony although he had six burglary convictions and had absconded
from supervised probation in Maryland after a conviction for assault
with intent to rob. At sentencing, the district court determined that
Stevens had an offense level of 24 under USSG § 2K2.1(a)(2)
because Stevens had at least two prior felony convictions for crimes
of violence. The court also added two criminal history points to Ste-
vens' criminal history score because he committed the instant offense
while he was under an outstanding warrant for probation violation
issued in Maryland in 1988. See USSG § 4A1.1(d). The district court
refused Stevens' requests for departures based on diminished capac-
ity, see USSG § 5K2.13, p.s., and overstated criminal history, see
USSG § 4A1.3, p.s.

Stevens argues that the burglary convictions should have been
treated as one offense because they all arose from a common scheme
or plan1 and thus were "related cases" under USSG § 4A1.2(a)(2),
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1 All six burglaries were committed within a 2-month period in West
Virginia and Pennsylvania. Stevens, his brother, and another man partici-
pated in all of them. The modus operandi was the same for each and the
stolen goods were all sold to the same buyer.

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comment. (n.3). He relies on United States v. Breckenridge, 93 F.3d
132, 137-40 (4th Cir. 1996) (holding that five of the defendant's prior
offenses which were consolidated for trial were related cases and
remanding for findings on whether another offense prosecuted in a
different jurisdiction was also related because it was part of a com-
mon scheme or plan). However, each of the burglary sentences which
received criminal history points under § 4A1.1 and § 4A1.1(f) were
properly considered in determining the offense level even though they
were related cases. See USSG § 2K2.1(a)(2), comment. (n.5). As the
district court noted, Breckenridge did not address the application of
§ 2K2.1; rather, it concerned only the calculation of the defendant's
criminal history.

Stevens also contends that, because Maryland made no attempt to
execute the warrant for ten years, giving him two criminal history
points amounts to a denial of due process. Under Application Note 4
to § 4A1.1, a defendant who commits the instant offense while a pro-
bation violation warrant is outstanding is deemed to be under a crimi-
nal justice sentence if the prior sentence is otherwise countable, even
if the sentence would have expired absent the warrant. See also USSG
§ 4A1.2(m) (same). Stevens was placed on two years supervised pro-
bation on December 19, 1986, in Frederick County, Maryland. In
1988, he was convicted and sentenced for the six burglaries he com-
mitted in West Virginia and Pennsylvania. Because he had absconded
from supervision in Maryland and had committed new crimes, a pro-
bation violation warrant was issued.

Stevens relies on United States v. Camilo, 71 F.3d 984 (1st Cir.
1995), in which the First Circuit noted that "[d]ue process requires
that a warrant for a probation violation be executed within a reason-
able time after issuance," and speculated that"[a] similar requirement
may exist under § 4A1.2(m)." Camilo, 71 F.3d at 988 n.7 (internal
citation omitted). However, Camilo held that the defendant could not
argue that the warrant was stale when the delay in execution was
caused "in significant part" by his wrongful conduct, namely, moving
to another state without notifying the probation office and using a
number of aliases. Id. at 988-89. See also United States v. Elmore,
108 F.3d 23, 27 (3d Cir. 1997) (points should be added for outstand-
ing warrant even if it is stale under state law and state authorities have
been lax in attempting to execute warrant) (citing Camilo). In this

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case, although Stevens did not use aliases, he left Maryland before his
period of supervision was over, apparently without notifying Mary-
land authorities. We find that both Elmore and Camilo support the
district court's decision to award two points under§ 4A1.1(d) and that
no error occurred.

Finally, the district court's decision not to depart on either ground
urged by Stevens is not reviewable on appeal. See United States v.
Bayerle, 898 F.2d 28, 31 (4th Cir. 1990). We therefore dismiss that
portion of the appeal.

The sentence is accordingly affirmed. We deny Stevens' motion for
leave to file a supplemental brief.2 We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED IN PART, DISMISSED IN PART
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2 While this appeal was pending, Maryland dismissed the probation
violation charge. We do not find the dismissal significant to the resolu-
tion of the issue raised in the appeal.

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