                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                                                          July 15, 2004
                            UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                  _________________________

                                        No. 03 – 41746
                                    SUMMARY CALENDAR
                                  _________________________

UNITED STATES OF AMERICA,

                       Plaintiff - Appellee

   v.

JASON ORTIZ,

                       Defendant - Appellant

______________________________________________________________________________

                 On Appeal from the United States District Court for the
                              Southern District of Texas
                                  (C-01-CR-207-1)
______________________________________________________________________________

Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

        In this appeal, we review Defendant - Appellant, Jason Ortiz’s, sentence imposed after

revocation of his supervised release following a guilty-plea conviction for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(8). For the following reasons, we

affirm the district court’s judgment.



        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.

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                                                  I.

                       FACTUAL AND PROCEDURAL BACKGROUND

        Ortiz pleaded guilty in 2001 to being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g). In his Presentence Report (hereinafter, “PSR”), Ortiz’s total offense level was

calculated as 12, and his criminal history score was calculated as IV, thus subjecting him to a

Sentencing Guidelines range of 21-27 months’ imprisonment. Ortiz did not object to the PSR at

this time.

        Ortiz was subsequently sentenced to 27 months’ imprisonment, followed by three years’

supervised release. Ortiz did not directly appeal his conviction or sentence.

        On July 28, 2003, the Probation Department filed a petition to revoke Ortiz’s supervised

release because of numerous alleged violations. After a hearing, the district court found that Ortiz

had violated the conditions of his supervised release, and ordered that his release be revoked.

        Relying on information in Ortiz’s PSR from his underlying conviction for being a felon in

possession of a firearm, the district court sentenced Ortiz to 12 months’ imprisonment, followed

by 24 months’ supervised release. Once again, Ortiz did not object to the information in his PSR

or the guidelines range of imprisonment he faced based upon calculations in the PSR. Ortiz did,

however, timely appeal the sentence.

                                                  II.

                                       WAIVER OF APPEAL

        Ortiz argues for the first time on appeal that the district court erroneously calculated his

criminal history score in the PSR completed for his conviction for being a felon in possession of a


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firearm. Ortiz argues that the erroneous calculation of his criminal history score led to an unjust

sentence following the revocation of his supervised release and that, accordingly, his sentence

should be vacated.

       Specifically, Ortiz argues that the original PSR assessed a total of three criminal history

points for his state-court convictions for causing bodily injury and for criminal mischief. Ortiz

was convicted of assaulting a victim for looking at his girlfriend at a dance and then going to the

parking lot and breaking the windows out of the victim’s car. In the original PSR, Ortiz received

two criminal history points for the assault and one criminal history point for criminal mischief for

breaking the victim’s windows. According to Ortiz, the extra point constituted double counting

because prior sentences in related cases should be treated as one sentence.

       If the two convictions had been treated as one sentence, Ortiz would have had a criminal

history score of III, which would have subjected him to a recommended sentencing range of five

to eleven months’ imprisonment. However, with a criminal history score of IV, Ortiz’s

sentencing range was six to twelve months’ imprisonment. As the district court sentenced Ortiz

to the maximum of twelve months’ imprisonment, Ortiz argues that the court plainly erred.

       The Government argues that Ortiz cannot challenge the computation of his underlying

criminal history score for the first time on appeal from the sentence imposed following the

revocation of his supervised release.

       We agree that Ortiz may not challenge the validity of his underlying criminal history score

for the first time on appeal. This court has held that a defendant may not use the revocation of

supervised release to challenge for the first time on appeal his sentence for an underlying offense.

See United States v. Moody, 277 F.3d 719, 720-21 (5th Cir. 2001). We have also held that a


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defendant appealing a sentence imposed following his second revocation of supervised release

could not raise for the first time the claim that his sentence for the first violation of supervised

release was improper. United States v. Stiefel, 207 F.3d 256, 259 (5th Cir. 2000).

        Ortiz’s situation is analogous to a defendant challenging the validity of the underlying

conviction as a defense in a probation revocation proceeding, something which this court has

clearly prohibited. See United States v. Francischine, 512 F.2d 827, 828 (5th Cir. 1975). The

Eleventh Circuit relied on our decision in Francischine in holding that a defendant could not

argue on appeal from the revocation of supervised release that the underlying term of supervised

release was invalid. United States v. Almand, 992 F.2d 316, 317 (11th Cir. 1993). The proper

time for Ortiz to object to the calculation of his criminal history score was prior to his original

sentencing for the underlying conviction, or at the latest on direct appeal. As he failed to do so,

Ortiz waived his right to appeal the calculation of his criminal history score.

                                                  III.

                                           PLAIN ERROR

        Even if we were to review Ortiz’s challenge to his criminal history score, the review

would be for plain error only because Ortiz raises the argument for the first time on appeal. See

United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994).

        Ortiz cannot meet the plain error standard. The Chapter 7 guidelines ranges for sentences

imposed upon revocation of supervised release are only advisory. See United States v. Headrick,

963 F.2d 777, 780 (5th Cir. 1992). The statutory maximum sentence is two years’ imprisonment.

See 18 U.S.C. § 3583(e)(3). As Ortiz’s sentence was only twelve months’ imprisonment, it was

not plain error. See Headrick, 963 F.2d at 780, 782-83.


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                                       IV.

                                 CONCLUSION

For the foregoing reasons, the decision of the district court is AFFIRMED.




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