                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-2066
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Martin Sanchez Barrera, aka              *
Juan Nunez Gutierrez,                    *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: November 10, 2008
                                 Filed: April 10, 2009
                                  ___________

Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
                         ___________

SMITH, Circuit Judge.

       Martin Sanchez Barrera pleaded guilty to one count of possession with intent
to distribute approximately 91 grams of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A). The district court1 sentenced Barrera to 120 months'
imprisonment followed by a five-year term of supervised release. On appeal, Barrera
argues that the district court erred (1) in finding that he was on probation at the time
of the offense and assessing him two criminal history points under U.S.S.G.


      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
§ 4A1.1(d) for committing the instant offense while on probation and (2) in failing to
use its Booker discretion to apply 18 U.S.C. § 3553(f)'s safety valve. We affirm.

                                   I. Background
      In 2003, Barrera pleaded guilty to misdemeanor assault in Oregon state court.
The court sentenced him to 30 days in jail and five years' probation. Barrera's
probation was scheduled to expire on November 21, 2008, but he was deported before
expiration of his probation. Barrera returned to the United States in 2005 and
sometime afterward began selling methamphetamine.

       In September 2007, authorities arrested Barrera after he delivered 240 grams
of methamphetamine to a confidential informant. Barrera pleaded guilty to possession
with intent to distribute approximately 91 grams of methamphetamine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A). The presentence investigation report (PSR) assessed
Barrera two criminal history points pursuant to § 4A1.1(d) because he was on
probation at the time the instant offense was committed. At sentencing, the district
court followed the PSR recommendation and increased Barrera's criminal history
score by two points. Further, the district court refused to apply the safety valve, which
would have made Barrera eligible for a sentence below the mandatory minimum
sentence pursuant to § 3553(f). Barrera was sentenced to 120 months' imprisonment
and five years of supervised release.

                                    II. Discussion
      First, Barrera argues that the district court erred in determining that he was on
probation at the time of the offense and assessing him two criminal history points
under § 4A1.1(d) for committing the instant offense while on probation. Second, he
argues that the district court erred in refusing to apply the safety valve under
§ 3553(f).




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                            A. Criminal History Calculation
       Barrera asserts that the district court erroneously added two points to his
criminal history score because he committed the instant offense while on probation
for his Oregon misdemeanor assault offense. See U.S.S.G. § 4A1.1(d). But Barrera
failed to object below to the factual findings of the PSR. Without objection, the
district court accepted the PSR's recommendation and added two points to Barrera's
criminal history score. Accordingly, Barrera "has waived this issue and may not raise
it before this court unless he can demonstrate plain error resulting in a miscarriage of
justice." United States v. Flores, 959 F.2d 83, 88 (8th Cir. 1992) (internal quotations
and citations omitted).

       The Guidelines allow a district court to award two additional criminal history
points "if the defendant committed the instant offense while under any criminal justice
sentence, including probation." U.S.S.G. § 4A1.1(d). Barrera argues that once he was
deported to Mexico, he was no longer on probation for purposes of § 4A1.1(d).
Specifically, Barrera asserts that because Oregon no longer exercised authority over
him, his deportation terminated his probation. This argument is without merit.
Although this is an issue of first impression in our circuit, other circuits have
expressly held that deportation does not automatically extinguish penal supervision
such as parole and supervised release. See, e.g., United States v. Carrasco-Mateo, 389
F.3d 239, 247 (1st Cir. 2004). We believe the same principle applies to probation and
hold that Barrera committed the instant offense while under a criminal justice sentence
despite his intervening deportation.

       Federal law, not state law, governs whether a defendant is under "any criminal
justice sentence." See Carasco-Mateo, 389 F.3d at 247. In Carrasco-Mateo, the
appellant argued that because he was deported, he was no longer under New York
parole. Id. at 246. The First Circuit concluded that whether a defendant is on parole
is a question of federal law. Id. at 246–47. The appellant asserted that because New
York no longer exercised custodial or supervisory authority over him, his term of

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parole had ended. Id. at 247. The court relied on immigration law in rejecting this
argument, stating that "Congress directed the Attorney General that a deportation
action should proceed apace notwithstanding an alien's parole status 'or possibility of
arrest or further imprisonment.'" Id. (quoting 8 U.S.C. § 1231(a)(4)(A)). The court
determined that § 1231(a)(4)(A) implicitly endorsed the proposition that "deportation
leaves an existing term of parole intact" because "an alien may be deported and later
face incarceration for violating his parole." Id. Therefore, the court held "that, under
federal law, deportation does not automatically extinguish an existing term of parole."
Id.

       Just as in Carrasco-Mateo, the Oregon court in the instant case did not lose
authority over Barrera merely because he was deported. Id. This decision is in accord
with other circuit courts that have addressed similar issues. See United States v.
Phillips, 413 F.3d 1288, 1292 (11th Cir. 2005) (holding that deportation did not cut
short appellant's parole term regardless of appellant's subjective beliefs); United States
v. Williams, 369 F.3d 250, 252–53 (3d Cir. 2004) (holding that term of supervised
release was not automatically terminated when defendant was deported from United
States, and thus defendant's subsequent commission of another offense, illegal re-entry
after deportation, prior to expiration of term of supervised release, violated condition
of supervised release that defendant commit no new offenses); United States v. Cuero-
Flores, 276 F.3d 113, 118 (2d Cir. 2002) (holding that parole survives deportation);
United States v. Akinyemi, 108 F.3d 777, 779 (7th Cir. 1997) (stating that Congress
did not intend for deportation to extinguish supervised release); United States v.
Brown, 54 F.3d 234, 238 (5th Cir. 1995) (holding that because Congress did not
specifically state that deportation terminates supervised release, it remains intact even
after an alien's deportation). We find these authorities persuasive. Accordingly, we
hold that the district court committed no error, plain or otherwise, in finding that
Barrera was on probation and assessing two criminal history points under § 4A1.1(d).




                                           -4-
                                 B. Safety-Valve Relief
       Barrera also argues that the Supreme Court in United States v. Booker, 543 U.S.
220 (2005), granted district courts the discretion to treat the safety-valve provision of
18 U.S.C. § 3553(f) as advisory. Barrera contends that the district court erroneously
assessed three criminal history points under the Guidelines based on his overstated
criminal history, thus making him ineligible for the safety valve. Barrera asserts that
the district court could have considered its assessment of criminal history points as
advisory and used its discretion to reduce his criminal history score to meet the
requirements of the safety valve, and set his sentence below the mandatory minimum
120 months. We disagree and affirm.

      Safety-valve relief allows the district court to disregard an applicable statutory
minimum if certain requirements are met. 18 U.S.C. § 3553(f). At issue here is the
requirement that the defendant not have more than "1 criminal history point, as
determined under the sentencing guidelines." 18 U.S.C. § 3553(f)(1). Barrera
essentially argues that Booker and its progeny made this provision of the Guidelines
merely advisory because criminal history is determined under the Guidelines.

      In Booker, the Supreme Court held that the Guidelines violated the Sixth
Amendment and rendered them "effectively advisory." 543 U.S. at 244, 245. Since
Booker, the Supreme Court has made it clear that "a district court should begin all
sentencing proceedings by correctly calculating the applicable Guidelines range." Gall
v. United States, 128 S. Ct. 586, 596 (2007). After a correct calculation of the
Guidelines, the district court should then decide whether to impose a sentence outside
the suggested range. Id. at 596–97. The district court here followed Booker and
correctly calculated Barrera's Guidelines range.

      We have already addressed and rejected the notion that a criminal history point
calculation is advisory post-Booker. In United States v. Leon-Alvarez, 532 F.3d 815,
815 (8th Cir. 2008), the appellant pleaded guilty to conspiracy to distribute 50 grams

                                          -5-
or more of methamphetamine mixture. During sentencing, the district court assessed
the appellant only one criminal history point despite his two prior convictions. Id. at
816. The district court reasoned that, after Booker, calculation of criminal history
points was advisory. Id. at 818. On appeal, we reversed the district court, holding that
"a district court should begin all sentencing proceedings by correctly calculating the
applicable Guidelines range." Id. We also noted that, according to "several of our
sister circuits," the calculation of the criminal history points is not advisory. Id. (citing
United States v. Hernandez-Castro, 473 F.3d 1004 (9th Cir. 2007); United States v.
Barrero, 425 F.3d 154 (2d Cir. 2005)).

        The district court properly considered Barrera's prior conviction and his
probationary status at the time of the instant offense in calculating his criminal history
score. See supra Part II.A. This calculation must precede any departures that may be
granted under U.S.S.G. § 4A1.3(b)(3)(B) based on overstated criminal history. See
U.S.S.G. § 5C1.2(a)(1). Barrera has more than two criminal history points; thus, he
is ineligible for safety-valve relief. The district court could not have reduced Barrera's
criminal history score simply to make him eligible for safety-valve relief. Other
circuits have reached the same conclusion. See United States v. Hunt, 503 F.3d 34, 37
(1st Cir. 2007) (holding that the plain language of the Guidelines precludes appellant
from receiving the benefit of the safety valve regardless of whether the district court
wanted to grant a downward departure because appellant had two criminal history
points); see also Barrero, 425 F.3d at 157 (holding that the "district court was plainly
correct when it decided that it did not have the discretion to award [appellant] only
one point under the Guidelines once it had determined, by the process provided by the
Guidelines, that [appellant] had two such points").

                                  III. Conclusion
       Barrera was properly assessed three criminal history points, making him
ineligible for safety-valve relief. Barrera has not otherwise challenged the
reasonableness of his sentence. Therefore, the district court's sentence is affirmed.
                       ______________________________


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