                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 16 1997
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff/Appellee,
                                                        No. 97-4025
 v.
                                                   (D.C. No. 96-CR-18 S)
                                                         (D. Utah)
 RICARDO AVALOS-CENTENO, also
 known as Ernesto Ramirez,

          Defendant/Appellant.


                                ORDER AND JUDGMENT *


Before BALDOCK, EBEL and MURPHY, Circuit Judges.


      Appellant Ricardo Avalos-Centeno pleaded guilty to unlawful reentry of a

deported alien, in violation of 8 U.S.C. § 1326. Applying the United States

Sentencing Guidelines (“U.S.S.G.”), the district court calculated Mr. Avalos-

Centeno’s criminal history category to be category five and his offense level to be



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9.
The case is therefore ordered submitted without oral argument. 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judgment is not binding precedent, except under the doctrines of law of the case,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.
21, resulting in an imprisonment range of 70 to 87 months. (See Tr. Rec vol. 2 at

8.) The district court sentenced Mr. Avalos-Centeno to 78 months imprisonment,

followed by 24 months supervised release and a special assessment of $50.00.

(See id. at 9-10.) Mr. Avalos-Centeno appeals his sentence on the ground that

the district court erred in not granting Mr. Avalos-Centeno’s request to deny the

Government’s recommended two-point enhancement of his criminal history score

for his prior conviction on an escape charge. We hold that the district court did

not err in refusing to disallow the recommended enhancement, and affirm.



I. Background

      The facts underlying this case are not disputed by Mr. Avalos-Centeno or

the Government. Mr. Avalos-Centeno was arrested on December 26, 1995 in Salt

Lake City, Utah, for the offense to which he eventually pleaded guilty. (See Aplt.

Br. at 3.) At the time of his arrest he was found to be in possession of a small

amount of illegal drugs and approximately $6,500 in cash. After his indictment,

Mr. Avalos-Centeno escaped from custody and went to Oregon for the claimed

purpose of obtaining documentation for the cash found in his possession. (See

id.) He then returned to Salt Lake City and turned himself in to authorities. (See

id. at 3-4.) Mr. Avalos-Centeno pled guilty to the escape in a Utah court and was

given a 180-day sentence. (See Presentence Report (“P.S.R.”) at 7.)


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      The United States Probation Office recommended adding two points to Mr.

Avalos-Centeno’s criminal history score for that escape conviction, pursuant to

U.S.S.G. § 4A1.1(b). (See P.S.R. at 8.) Mr. Avalos-Centeno objected to this

enhancement. (See P.S.R. Addendum at 1.) At sentencing the district court

addressed Mr. Avalos-Centeno’s objection thus:


             Relative to the escape, it does appear . . . that there are
             some mitigating circumstances there which, of course, based
             on my reading of the Sentencing Guidelines, these are matters
             to be considered at the time of sentence, and I assume the
             sentencing court did give consideration for that. I don’t believe,
             however, that that is a basis to not assess the two points that
             U.S. Probation assessed in this matter, unless the United States
             would consent that the Court not give that consideration.


( Sent. Rec. Vol. 2 at 4.) The Government did not give its consent. (See id.)


II. Discussion

      We review a district court’s application of the Sentencing Guidelines de

novo. See United States v. Kissick, 69 F.3d 1048, 1051 (10th Cir. 1995). Here,

Mr. Avalos-Centeno challenges his sentence on the basis that the district court

refused to grant him a downward departure under the erroneous belief that it did

not have the power to do so. Mr. Avalos-Centeno is correct in his assertion that

this court has jurisdiction to review a district court’s refusal to grant a downward




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departure only in the face of an unambiguous statement by the district court that

the court believed it did not have the power to grant such a departure. See

United States v. Berrera-Barron, 996 F.2d 244, 245 (10th Cir. 1993). However,

the district court’s action in the case before us was not a refusal to grant a

downward departure, but rather a decision to apply a criminal history

enhancement under the Sentencing Guidelines. There is no evidence on the

record before us that Mr. Avalos-Centeno ever requested that the court depart

downward from his sentence, and we decline to interpret Mr. Avalos-Centeno’s

objection to a suggested enhancement as a request for a downward departure.

      Under U.S.S.G. § 4A1.1(b), a criminal defendant’s sentence is to be

increased by two points for “each prior sentence of imprisonment of at least sixty

days” but less than one year and one month. See U.S.S.G. §§ 4A1.1 (a) & (b)

(1995). Mr. Avalos-Centeno was convicted of the crime of escape by a Utah

court and sentenced to 180 days of imprisonment. (See P.S.R. at 7.) This clearly

qualifies as a “prior sentence of imprisonment of at least sixty days.” U.S.S.G.

§ 4A1.1(b); see U.S.S.G. § 4A1.2(a)(1) (defining the term “prior sentence” as

“any sentence previously imposed upon adjudication of guilt, whether by guilty

plea, trial, or plea of nolo contendere, for conduct not part of the instant

offense”). Mr. Avalos-Centeno objected to the enhancement on the grounds that

his conduct underlying the escape conviction involved extenuating circumstances


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that the district court should take into account. (See P.S.R. Addendum at 1.) The

district court considered Mr. Avalos-Centeno’s objection, and decided that all

extenuating circumstances had been addressed by the Utah court that sentenced

Mr. Avalos-Centeno. (See Sent Rec. Vol. 2 at 4.) The court then adopted the

Presentence Report’s findings of fact and sentenced Mr. Avalos-Centeno. In

doing so, the court correctly applied § 4A1.1(b) to calculate Mr. Avalos-

Centeno’s prior criminal history score.



III. Conclusion

      For the above reasons, the district court’s judgment is AFFIRMED.



      The mandate shall issue forthwith.

                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




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