                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                    UNITED STATES COURT OF APPEALS                     April 24, 2008
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-1383
          v.                                             (D. Colorado)
 EMERSON BOYD AUSTIN,                           (D.C. No. 05-CR-00101-LTB)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Emerson Boyd Austin pled guilty, pursuant to a

Fed. R. Crim. P. 11(c)(1)(C) plea agreement, to one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was sentenced


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
to seventy-seven months’ imprisonment. Austin challenges his sentence, which

we affirm.



                                 BACKGROUND

      The following facts are taken from the plea agreement and statement of

facts relevant to sentencing, later incorporated into the presentence report

(“PSR”), to which neither party objected. On September 4, 2004, Austin was

involved in an altercation with another individual at Sky Ute Downs in Ignacio,

Colorado. When law enforcement authorities arrived, they confiscated a .22

caliber revolver from Austin. Following his arrest, Austin admitted that he had

bought the revolver. A subsequent review of his criminal history revealed that he

had been previously convicted in June 2001 of aggravated assault against a

household member in New Mexico, as well as of burglary and larceny, both of

which were punishable by a term of imprisonment exceeding one year and are

therefore felonies. Austin had also been convicted in March 2001 of auto

burglary, which is punishable by a term of imprisonment exceeding one year

(another felony). He was therefore indicted on March 10, 2005, for possession of

a firearm by a prohibited person—i.e., a felon.

      On April 25, 2005, Austin was arrested and charged with kidnapping,

aggravated sexual assault, and sexual abuse of a minor in Arizona. Following a

jury trial, Austin was found guilty of the aggravated assault and the sexual abuse

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charges. He was sentenced to 600 months’ imprisonment for the assault charge

and a concurrent term of 180 months’ on the sexual abuse charge, followed by a

life term of supervised release. As of the date the briefs were filed in this appeal,

that case was pending on appeal in the United States Court of Appeals for the

Ninth Circuit. See United States v. Austin, No. 07-10198 (9th Cir., filed Apr. 17,

2007). 1

       In preparation for sentencing on the instant conviction, the United States

Probation Office prepared a PSR, which calculated Austin’s total offense level at

21 which, with a criminal history category of VI, yielded an advisory sentencing

range under the United States Sentencing Commission, Guidelines Manual

(“USSG”), of seventy-seven to ninety-six months’ imprisonment. The criminal

history category of VI was calculated on the basis that Austin had fifteen criminal

history points, three of which were for the Arizona assault/abuse convictions.

       Austin objected to the PSR on several grounds, one of which involved the

three criminal history points assessed for the Arizona conviction. Specifically,

Austin argued that “[i]f this court computes a longer sentence of imprisonment

based on a conviction and sentence that are eventually overturned, the time for




       1
       The government asserts that the Ninth Circuit’s docket shows that, on
February 12, 2008, Austin’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738, 744 (1967), indicating counsel’s belief that there were no
nonfrivolous issues upon which to base an appeal.

                                          -3-
[him] to seek correction of this sentence will have lapsed, and he will be without

an avenue of relief.” Defendant’s Objections to the PSR at 2. 2

      In response, the district court stated, “First of all, I don’t think the question

is ripe. Secondly, it would be an advisory opinion in any event, and . . . I think

I’ll not answer the question.” Tr. of Sentencing at 3, R. Vol. II. Furthermore, the

district court observed that USSG §4A1.2, comment. (n.1) specifically states “that

a sentence imposed after Defendant’s commencement of the instant offense, but

prior to sentencing for the instant offense, is a prior sentence if it was for conduct

other than conduct that was part of the instant offense,” and then noted that

“[t]his case would seem to fit that application note.” Id. at 4. The district court

accordingly overruled Austin’s objection to the inclusion of the three criminal

history points based on the Arizona conviction. Austin appeals that ruling.



                                   DISCUSSION

      When reviewing federal sentences, “as a matter of procedural regularity,

the ‘starting point and the initial benchmark’ for any sentencing decision must be

a correctly calculated Guidelines sentencing range.” United States v. Todd, 515

F.3d 1128, 1134 (10th Cir. 2008) (quoting Gall v. United States, 128 S. Ct. 586,

      2
        At the sentencing hearing, Austin’s counsel explained his concern as
follows: “it becomes a moot point if he’s successful on the appeal in Arizona; but
if he’s successful on appeal, he just wants to make sure he hasn’t spent the last
two and a half years in vain on that case and that he has an avenue of relief.” Tr.
of Sentencing at 3, R. Vol. II.

                                          -4-
596 (2007)). Thus, on appellate review of a sentence, “our first task remains to

‘ensure that the district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range . . . [or]

selecting a sentence based on clearly erroneous facts.’” Id. at 1134-35 (quoting

Gall, 128 S. Ct. at 597).

      Austin concedes that USSG § 4A1.2(l) provides that, in calculating

criminal history, “[p]rior sentences under appeal are counted except as expressly

provided below.” He further concedes that none of the express exceptions apply.

He nonetheless argues that due process prevents his Arizona conviction from

being counted because he claims there is no clear avenue for relief if that

conviction is overturned on appeal, after it was used to increase his criminal

history, and therefore his sentence, on the instant conviction. As the government

points out, however, a number of courts, including our own, have recognized that

there is an avenue for relief. We have stated that “[i]f a defendant successfully

attacks state sentences, he may then apply for reopening of any federal sentence

enhanced by the state sentences.” United States v. Cox, 83 F.3d 336, 339 (10th

Cir. 1996). We have observed that “[i]n reopening defendant’s sentence, the

district court must determine the basis for the expungement or dismissal of the

prior offenses and whether they may be included in calculating defendant’s

criminal history score.” Id. at 339. Thus, “[c]onvictions reversed or vacated for

reasons related to constitutional invalidity, innocence, or errors of law are

                                          -5-
expunged for purposes of the Guidelines and therefore cannot be included in

criminal history calculations,” while “convictions . . . set aside for reasons other

than innocence or errors of law . . . are counted for criminal history purposes.”

Id. at 339-40. While we are dealing here with a prior federal conviction, not a

state one, we cannot see any reason to reach a different result.

      Accordingly, Austin is not necessarily left without a remedy even if his

conviction in Arizona is overturned on appeal. We note that neither party has

provided current information on the status of the appeal pending before the Ninth

Circuit, nor on any grounds for which an appeal in that court could be or is based.

Austin’s argument to us is, of course, moot if his appeal before the Ninth Circuit

is dismissed or otherwise fails to provide him with any relief. Furthermore, as

indicated above, the degree to which relief would be available to Austin may

depend on the basis for which the appeal is successful.



                                  CONCLUSION

      For the foregoing reasons, the sentence is AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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