             NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 08a0120n.06
                       Filed: February 27, 2008

                                       No. 06-2174

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                  )
                                           )
       Plaintiff-Appellee,                 )
                                           )    ON APPEAL FROM THE UNITED
v.                                         )    STATES DISTRICT COURT FOR
                                           )    THE EASTERN DISTRICT OF
ARMANDO CARBALLO-                          )    MICHIGAN
ARGUELLES                                  )
                                           )
       Defendant-Appellant.                )



Before: BOGGS, Chief Circuit Judge, KENNEDY, Circuit Judge, and JORDAN,

District Judge*

       LEON JORDAN, District Judge. This is an appeal from a sentence imposed

following the defendant’s plea of guilty to illegally reentering the United States after

deportation. The defendant argues (1) that the calculation of his criminal history

points was incorrect; (2) that he should have been given a “fast-track” departure to

avoid sentencing disparity; (3) that his prior felony should not have been used to

enhance his sentence; and (4) that the judgment incorrectly stated the term of



       *
       The Honorable Leon Jordan, Senior United States District Judge for the Eastern District
of Tennessee, sitting by designation.
supervised release imposed by the court. For the following reasons, we affirm the

defendant’s sentence, but remand for a correction of the written judgment.

                                    Background

      The defendant Armando Carballo-Arguelles pled guilty to an information

charging him with one count of unlawful reentry after deportation following a

conviction for an aggravated felony, a violation of 8 U.S.C. § 1326. Using the 2005

edition of the Sentencing Guidelines, the probation officer determined that the

defendant’s adjusted base offense level was 21 based on the defendant’s prior

conviction for a crime of violence (assault with intent to murder). With a criminal

history category of VI, his guideline range was 77 to 96 months.

      The defendant filed objections to the presentence report with the probation

office, one of which was a claim that he should not have been assessed three

criminal history points for a conviction for Malicious Destruction of Property (¶ 37 of

the presentence report). The probation officer investigated the defendant’s claim

concerning this conviction and, relying on a letter from the Michigan Department of

Corrections, determined that this conviction was not too old to be counted. The

defendant apparently abandoned this argument until appeal as there is no further

reference to the issue in the defendant’s sentencing memorandum or the sentencing

transcript.

      In his sentencing memorandum and motion for a departure from the

sentencing guidelines filed before sentencing, however, the defendant argued that


                                          2
using his conviction for a crime of violence to increase both his base offense level

and his criminal history was “double counting”; that he should be given the

advantage of the “fast track” program used in districts where there are numerous

illegal reentry cases; and that as a non-citizen he would be subjected to harsher

prison conditions than other prisoners, a fact the court should consider as a basis

for departure. At sentencing, the district court granted a one-level reduction in the

defendant’s sentence and sentenced the defendant to 70 months in prison followed

by a two-year term of supervised release. The district court’s sentencing opinion

explained the reason for granting a small reduction – double counting of the crime

of violence – and for rejecting the defendant’s fast-track argument. The written

judgment incorrectly stated the defendant’s term of supervised release as three

years.

                                       Analysis

                          1. Criminal History Computation

         On appeal, the defendant attempts to revive his argument that his February

1986 conviction for malicious destruction of property is time barred and should not

count towards his criminal history score. W e find that the defendant has forfeited the

issue on appeal. See United States v. Koeberlein, 161 F.3d 946, 949 n. 2 (6th Cir.

1998) (noting that a defendant forfeits a sentencing issue if it is not raised before the

sentencing judge). Thus, as conceded by the defendant, our review will be for plain

error. Id. at 949. “To establish plain error, a defendant must show (1) that an error


                                           3
occurred in the district court; (2) the error was plain, i.e., obvious or clear; (3) that the

error affected defendant’s substantial rights; and (4) that this adverse impact

seriously affected the fairness, integrity, or public reputation of the judicial

proceedings.” United States v. Abboud, 438 F.3d 554, 583 (6th Cir. 2006). Our

review of the issue leads us to conclude that there was no plain error.

       Under the sentencing guidelines, a defendant is assessed three points

towards his criminal history score for each prior sentence of imprisonment exceeding

one year. USSG § 4A1.1(a). The guidelines further provide, in relevant part:

       Any prior sentence of imprisonment exceeding one year and one month
       that was imposed within fifteen years of the defendant’s
       commencement of the instant offense is counted. Also count any prior
       sentence of imprisonment exceeding one year and one month,
       whenever imposed, that resulted in the defendant being incarcerated
       during any part of such fifteen-year period.

USSG § 4A1.2(e)(1). The parties agree that the conduct resulting in the instant

conviction occurred on August 15, 2006. Thus, any sentence of imprisonment for

more than one year and one month the defendant received and/or completed before

August 15, 1991, should not be counted as part of his criminal history score.

       The defendant was sentenced by a Michigan court on February 28, 1986, to

one-to-four years in prison for malicious destruction of property. He was paroled on

October 20, 1986 and deported to Mexico. He violated his parole a year later and

was returned to prison. He was paroled again on July 1, 1988, and once again

deported to Mexico. W hile on parole the defendant committed another offense in



                                             4
Michigan, assault with intent to murder, for which he was sentenced to eight to

twenty years in prison. He was finally paroled from this offense on December 12,

2005.

        The probation officer investigated the defendant’s objection to counting the

1986 conviction and, upon receipt of a letter from the Michigan Department of

Corrections interpreting a Michigan statute concerning eligibility for parole,1

concluded that the 1986 conviction was still active in August 1991 because it was

added to the offense committed while on parole. No change was made to the

presentence report.

        In this appeal the defendant argues that the one-to-four year sentence he

received in 1986 had to have expired by 1990, before the fifteen-year counting

period began, so he should not have had three criminal history points added for that

conviction. At oral argument for the first time, the defendant argued that another




        1
            The Michigan statute upon which the probation officer relied states, in relevant part, as follows:

        If a prisoner other than a prisoner subject to disciplinary tim e is sentenced for consecutive
        term s, whether received at the sam e tim e or at any tim e during the life of the original
        sentence, the parole board has jurisdiction over the prisoner for purposes of parole when the
        prisoner has served the total tim e of the added m inim um term s, less the good tim e and
        disciplinary credits allowed by statute. The m axim um term s of the sentences shall be added
        to com pute the new m axim um term under this subsection, and discharge shall be issued only
        after the total of the m axim um sentences has been served less good tim e and disciplinary
        credits, unless the prisoner is paroled and discharged upon satisfactory com pletion of the
        parole.

Mich. Com p. Laws § 791.234(3). The Michigan Departm ent of Corrections interprets this statute to m ean that
a prisoner is not eligible for discharge until the com bined, m inim um sentences (the paroled and new sentence)
have been served.

                                                        5
Michigan statute, Mich. Comp. Laws § 768.7a, provides for the expiration of the

earlier of consecutive sentences. Section 768.7a(2) states:

      If a person is convicted and sentenced to a term of imprisonment for a
      felony committed while the person was on parole from a sentence for
      a previous offense, the term of imprisonment imposed for the later
      offense shall begin to run at the expiration of the remaining portion of
      the term of imprisonment imposed for the previous offense.

Mich. Comp. Laws § 768.7a(2). The defendant argued that the Michigan courts

have distinguished between the term “discharge” as used in § 791.234 and

“expiration” as used in § 768.7a. See, e.g., Lickfeldt v. Dep’t of Corr., 636 N.W .2d

272 (Mich. 2001) (determining that earlier consecutive sentences “expire as they are

completed, effectively moving the string along from sentence to sentence”).

      In opposition, the government contends that the termination date of the prior

sentence is combined with a subsequent, consecutive sentence as set out in

§ 791.234. The defendant’s conviction for assault with intent to murder was ordered

to be served consecutively to the 1986 conviction because he was on parole when

the assault occurred.     See Mich. Comp. Laws § 768.7a.          Since he was not

discharged from these combined sentences until 2005, the government submits that

the defendant correctly received three criminal history points for the 1986 conviction.

      However, none of these arguments were made before the district court. Even

if it could be said that assessing the three points for the 1986 conviction was error,

there was no “obvious or clear” error. The uncertainty of the record is reason

enough to reach this conclusion. For example, the confusing use of the terms


                                          6
“discharge,” “termination,” and “expiration” in the Michigan statutes, the interpretation

of these terms by the Michigan Department of Corrections and the courts, and the

lack of information as to whether the time the defendant was deported would count

towards his sentence, lead us to conclude that there was no plain error. This issue

is without merit.

                        2. Unwarranted Sentencing Disparity

      Our review of whether the district court properly denied the defendant’s

sentencing disparity argument is for reasonableness.            See United States v.

Hernandez-Fierros, 453 F.3d 309, 312 (6th Cir. 2006).           In order to determine

whether a particular sentence is reasonable, this court considers, among other

things, the district court’s explanation for the sentence imposed in light of the factors

enumerated in 18 U.S.C. § 3553(a). Id.

      The defendant argues that the district court erred in refusing to consider a

sentence that would be consistent with defendants sentenced in districts with the

fast-track program. Under the program, available only in some areas of the United

States, a defendant agrees to plead guilty quickly without contesting removal from

the United States in exchange for a motion from the government for up to a four-

level reduction in his or her base offense level. See id. at 310 n.2.

      W e find that the district court correctly held that fast-track program does not

result in an unwarranted disparity under § 3553(a). As noted by the district court, to

give a defendant a sentencing reduction on this basis would give him a benefit for


                                           7
which the government has not bargained. Further, the defendant is not similarly

situated to fast-track defendants because he has not relinquished rights in exchange

for the government’s motion. Thus, the departures offered in some districts are

explained by the need for effective functioning of a particular district court and there

is no disparate treatment of individual defendants. See id. at 313-14. Finally,

sentencing disparity is only one factor for the district court to consider in arriving at

a sentence that is sufficient, but not greater than necessary. See 18 U.S.C. §

3553(a); see also Hernandez-Fierros, 453 F.3d at 313.

      In this case, we find that the district court adequately considered and rejected

the defendant’s argument for a reduction in his sentence because fast-tracking was

not available in Michigan.

                           3. Sixth Amendment Violation

      Ordinarily, a constitutional challenge to a defendant’s sentence is reviewed de

novo if the defendant preserves his claim for appellate review. See United States

v. Copeland, 321 F.3d 582, 601 (6th Cir. 2003). However, the defendant failed to

make an objection to this alleged constitutional violation in the district court, so his

challenge is reviewed for plain error. Id.

      In this appeal, the defendant argues that there was no jury determination (or,

presumably, he did not admit) that his prior aggravated felony qualified as a crime

of violence, so the additional 16 levels should not have been added to his base

offense level. Section 1326(b)(2) of Title 8 of the United States Code makes it an

                                             8
offense for an alien to be found in the United States after having been removed

subsequent to a conviction for an aggravated felony. The sentencing guidelines

provide for a 16-level increase if the defendant’s prior felony was a “crime of

violence.” USSG § 2L1.2(b)(1)(A). A crime of violence is defined as “murder,

manslaughter, kidnapping, aggravated assault . . . or any offense under federal,

state, or local law that has as an element the use, attempted use, or threatened use

of physical force against the person of another.”       USSG § 2L1.2, comment.

(n.1(B)(iii)).

       At the time of his guilty plea, the defendant admitted that he had been

previously convicted of an aggravated felony, which resulted in at least an 8-level

increase in his base offense level under the guidelines.                See USSG

§ 2L1.2(b)(1)(C). The probation officer found and the court agreed, however, that

the defendant’s prior aggravated felony, assault with the intent to murder, met the

definition of a crime of violence as set out above. Thus, 16 levels were added to

the defendant’s base offense level of 8.

       Much of the defendant’s brief concerns the viability of the holding in

Almendarez-Torres v. United States, 523 U.S. 224 (1998), where the Supreme

Court held that “Congress intended to set forth a sentencing factor [aggravated

felony] in subsection (b)(2) and not a separate criminal offense,” and it need not be

proven beyond a reasonable doubt. Id. at 235. We have specifically found that

Almendarez-Torres remains good law until the Supreme Court says otherwise.

                                           9
United States v. Hill, 440 F.3d 292, 299 n.3 (6th Cir. 2006). As noted above,

however, the defendant admitted that he had a conviction for a prior aggravated

felony, so his argument is really whether the district court erred in applying the

guideline definition of “crime of violence” to his admitted aggravated felony.

      In the Sixth Circuit, district courts may engage in judicial fact finding in order

to arrive at a reasonable sentence as long as the guidelines are treated as

advisory. United States v. Geerken, 506 F.3d 461, 466 (6th Cir. 2007). We find

that there was no error, plain or otherwise, in identifying the defendant’s prior

aggravated felony as a crime of violence. “Assault with Intent to Murder” is clearly

a crime of violence as defined by the guidelines, and the district court’s adoption of

the probation officer’s recommendation was reasonable.

                                 4. Judgment Error

      At the time of sentencing, the district court sentenced the defendant to a two-

year term of supervised release, but the written judgment states that the

defendant’s term of supervised release is three years. In its brief, the government

concedes that the judgment should be corrected because where there are

conflicting sentencing pronouncements, the oral sentence generally controls. See

United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). Therefore, this criminal

case will be remanded to the district court for a correction of the written judgment

to reflect the oral sentence.



                                          10
      We AFFIRM the defendant’s sentence, but remand for a correction of the

written judgment.




                                     11
