                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          JUL 12 2004

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 03-3085
 v.                                            (D.C. No. 02-CR-40005-SAC)
                                                         (Kansas)
 CARLOS ALONSO MORENO,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      Carlos Alfonso Moreno brings this appeal challenging the district court’s

calculation of his sentence under the United States Sentencing Guidelines.

Pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we exercise jurisdiction over

Mr. Moreno’s appeal. The government concedes that the district court committed

plain error. We reverse and remand for resentencing.

      *
       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(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
      Mr. Moreno was charged in district court with various drug offenses and

with being a felon in possession of a firearm. He entered a guilty plea to

possession with intent to distribute more than fifty grams of a substance

containing a detectable amount of methamphetamine, 21 U.S.C. § 841(a)(1), and

possession of a firearm by a prohibited person, 18 U.S.C. § 922(g).

      In the presentence report (PSR) recommending Mr. Moreno’s sentence, the

Probation Officer added a point to his criminal history score as a result of

September 2001 convictions for driving with a suspended license and for unsafe

turning or stopping. Rec., vol. III at 17. For this earlier offense, Mr. Moreno was

sentenced to six months in jail, with all but five days suspended, and six months

of probation. Id. The Probation Officer justified the addition of this point by

citing the sentencing guidelines, which direct that sentences for less than sixty

days should be given one point. See U.S. S ENTENCING G UIDELINES M ANUAL §

4A1.1(c). The Probation Officer then determined that Mr. Moreno’s criminal

history points totaled ten, placing him at the bottom of criminal history category

V. Id. The district court agreed with this result and calculated Mr. Moreno’s

total adjusted offense level to be twenty-five. Rec., vol. II at 21, 25. The court

subsequently sentenced Mr. Moreno to 100 months in prison, which is at the

bottom of the 100 to 125 month range for an offense level twenty-five and

criminal history category V. Id. at 25.


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      On appeal, Mr. Moreno asserts the district court erred by adding a point to

his criminal history for the earlier sentence. Absent the additional point, Mr.

Moreno would have been in a lower criminal history category and hence could

have been subjected to a shorter sentence. However, because Mr. Moreno failed

to raise an objection before the district court regarding the additional point for the

September 2001 sentence, our review of the district court’s sentencing

determination is limited to the plain error standard. United States v. Price, 265

F.3d 1097, 1107 (10th Cir. 2001).

      Application of the wrong sentencing guideline range constitutes plain error.

United States v. Occhipinti, 998 F.2d 791, 801-02 (10th Cir. 1993). Pursuant to

the guidelines, certain sentences for misdemeanors and petty offenses are not

counted in calculating a defendant’s criminal history. U.S. S ENTENCING

G UIDELINES M ANUAL § 4A1.2(c). Driving with a suspended licence is to be

counted only if “the sentence was a term of probation for at least one year or a

term of imprisonment of at least thirty days, or . . . the prior offense was similar

to the instant offense.” U. S. S ENTENCING G UIDELINES M ANUAL § 4A1.2(c). In

this context, “[i]f part of a sentence of imprisonment [is] suspended, ‘sentence of

imprisonment’ refers only to the portion that was not suspended.” U.S. S ETENCING

G UIDELINES M ANUAL § 4A1.2(b)(2). “Minor traffic infractions (e.g., speeding)”

are never counted. U.S. S ENTENCING G UIDELINES MANUAL § 4A1.2(c)(2).


                                          -3-
      As noted above, Mr. Moreno’s sentence for driving with a suspended

license and unsafe turning and stopping was six months in jail, with all but five

days suspended, and six months of probation. For the purposes of section

4A1.2(c)(1), then, Mr. Moreno’s sentence only amounted to the five days that

were not suspended. See U.S. S ENTENCING G UIDELINES M ANUAL § 4A1.2(b)(2).

Hence, his sentence for driving with a suspended license does not fall within

section 4A1.2(c)(1)’s group of covered sentences. Likewise, contrary to the

guideline’s requirements, Mr. Moreno’s previous driving infractions are not

similar to the present offense of drug and gun possession. Finally, the guidelines

make clear that a minor traffic offense, which certainly includes unsafe turning

and stopping, is not to be counted in calculating a defendant’s criminal history

category. Therefore, it was erroneous for the district court to add an additional

point to Mr. Moreno’s criminal history category for the September 2001 sentence.

The additional point resulted in the court applying the wrong sentencing guideline

range in calculating Mr. Moreno’s sentence, and constituted plain error under

Occhipinti. The government agrees that the district court plainly erred and

requests that the matter be remanded to the district court for resentencing.

      Consequently, we REVERSE the district court’s ruling on this matter, and




                                         -4-
REMAND for resentencing.



                           ENTERED FOR THE COURT

                           Stephanie K. Seymour
                           Circuit Judge




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