           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                   FILED
                                                                 January 7, 2009
                                 No. 06-40506
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

MARTIN MERCADO-GARZA

                                            Defendant-Appellant


                  Appeal from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:03-CR-590-1


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Martin Mercado-Garza (Mercado) pleaded guilty to conspiring to possess,
with the intent to distribute, more than 100 kilograms of marijuana. He was
sentenced to 87 months of imprisonment and a four-year term of supervised
release.
      Mercado argues that the district court, in determining his sentence,
improperly considered prior arrests for which no conviction resulted. He refers
this court, however, only to instances where the district court considered his four

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 06-40506

prior convictions. He does not contest the validity of those convictions. As these
arrests culminated in convictions, this argument lacks merit.
      Mercado contends that the district court erred in adding two points to his
criminal history score, pursuant to U.S.S.G. § 4A1.1(d), based on the fact that,
at the time he committed the instant offense, he was on probation for a
Washington forgery conviction. He maintains that his probationary period was
extended solely due to his failure to pay a fine and that it was therefore
improper to use that probationary period to apply § 4A1.1(d).
      We have conducted a de novo review of the district court’s application of
§ 4A1.1(d). See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008). We need not address Mercado’s argument because the application of
§ 4A1.1(d) was supported by the fact that, at the time Mercado committed the
instant offense, he was on probation following an Oregon kidnapping conviction
as he had absconded from supervision on that probation term. Mercado has
made no argument with regard to his Oregon kidnapping conviction or the
district court’s use thereof to apply § 4A1.1(d) in calculating his guidelines
sentencing range.
      AFFIRMED.




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