                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4671


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICARDO TORRES CASTILLA, a/k/a Ricardo Catilla, a/k/a Eber
Emanuel Urias Sanchez,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
Chief District Judge. (3:11-cr-00393-FDW-1)


Submitted:   May 5, 2014                      Decided:   May 9, 2014


Before WILKINSON, AGEE, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Samuel B. Winthrop, WINTHROP & WINTHROP, Statesville, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Ricardo      Torres     Castilla,    a    native     and     citizen        of

Mexico, pled guilty to illegal reentry into the United States

following      his     removal       subsequent    to        sustaining        a     felony

conviction.        8 U.S.C. § 1326(a), (b)(1) (2012).                    Castilla was

sentenced     to     thirty    months’    imprisonment,          which    was       at   the

bottom of his advisory Sentencing Guidelines range.                             The lone

issue in this appeal is whether the district court procedurally

erred in assigning Castilla two criminal history points pursuant

to U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.1(d) (2011).

For the reasons that follow, we affirm.

              Generally,        in     reviewing       the       district           court’s

calculations       under      the    Guidelines,    “we      review      the       district

court’s legal conclusions de novo and its factual findings for

clear error[,]” United States v. Manigan, 592 F.3d 621, 626 (4th

Cir. 2010) (internal quotation marks omitted), and will “find

clear error only if, on the entire evidence, we are left with

the   definite       and    firm     conviction    that      a   mistake       has       been

committed.”        Id. at 631 (internal quotation marks and alteration

omitted).      However, while Castilla did object in the district

court to the application of USSG § 4A1.1(d), he did not advance

either   of    the    two   specific     arguments      he    presents     on       appeal.

Accordingly, we will review both issues for plain error.                             United



                                           2
States    v.    Rooks,       596   F.3d       204,   212   (4th    Cir.   2010);    United

States v. Blatstein, 482 F.3d 725, 731 (4th Cir. 2007).

               Castilla      first      contends     that    his   two-year    probation

sentence, imposed by a Colorado state court in December 2007,

had   expired        by   the    time    he    committed     the   underlying      federal

offense, and that the probationary period had not been extended.

Thus, Castilla maintains that he “did not commit any part of the

instant    offense        while     under      any    criminal     justice    sentence.”

(Appellant’s Br. at 6-7).

               But    this      argument      ignores      the   legal    effect   of   the

Colorado court’s probation violation warrant, which was issued

in January 2008.             Specifically, USSG § 4A1.1(d) authorizes two

additional criminal history points “if the defendant committed

the instant offense while under any criminal justice sentence,

including probation, parole, supervised release, imprisonment,

work release, or escape status.”                     Pursuant to USSG § 4A1.2(m),

if the instant offense is committed while a probation violation

warrant from an earlier sentence is outstanding, the defendant

“shall be deemed to be under a criminal justice sentence if that

sentence is otherwise countable, even if that sentence would

have expired absent such a warrant.”                         A probationary sentence

is, of course, “otherwise countable.”                      USSG § 4A1.2 cmt. n.2.

               Relying on information set forth in the presentence

report (“PSR”), the district court determined that Castilla was

                                                3
“under” a probationary sentence when he committed the instant

federal offense in November 2011 because the Colorado court’s

probation violation warrant remained outstanding.                      Nothing in

the PSR suggested that the warrant had been executed, served, or

revoked.

              Castilla     counters   by     arguing      that     “there   is    no

evidence in the record to show ‘any violation warrant from a

prior sentence is still outstanding.’”                  (Appellant’s Br. at 8)

(quoting USSG § 4A1.1(d) cmt. n.4).                 Castilla theorizes that,

because      the   violation   warrant       was   issued     to   ascertain     his

deportation status and it is now certain that he was removed to

Mexico    before     the   warrant    was     issued,    it    would   have      been

vacated. *    (Id. at 8-9).

              We simply cannot accept Castilla’s supposition on this

point.     It is the defendant’s burden to submit proof to support

his refutation of an item contained in a PSR, see United States


     *
       In conjunction with this argument, Castilla points us to
United States v. Baty, 931 F.2d 8, 10-11 (5th Cir. 1991), in
which the Fifth Circuit held that a defendant is not under a
criminal justice sentence when, at the time of the federal
offense,   there  is  an   outstanding  motion  to  revoke the
defendant’s state probation but no capias has been issued. But
Baty is distinguishable in that, here, there was an actual
violation warrant.    Moreover, Baty’s continued relevance is
questionable, given that it was decided prior to enactment of
USSG § 4A1.2(m) and commentary note 4 to USSG § 4A1.1, which
directly address the significance of an outstanding violation
warrant.



                                         4
v. Slade, 631 F.3d 185, 188 (4th Cir. 2011) (“The defendant

bears the burden of establishing that the information relied

upon by the district court — here the PSR — is erroneous.”), and

Castilla adduced no evidence to demonstrate that the Colorado

court    had       revoked     or     invalidated           the   violation         warrant     upon

learning of his removal.                 Moreover, at sentencing, the district

court    may       consider         hearsay    information          that    “has        sufficient

indicia of reliability to support its probable accuracy,” USSG

§ 6A1.3(a), p.s., and the probation officer explained that she

had    “court       documents”         and    a    “printout”          of   the     state       court

record, which reflected the issuance of a violation warrant.

Finally,       we       note    that     the       sentencing          court      is    under     no

obligation         to    independently            consider        whether      an      outstanding

warrant       is    stale      or    whether       state      authorities           were   lax    in

executing the warrant.                  See United States v. Davis, 313 F.3d

1300, 1305-06 (11th Cir. 2002); United States v. Mateo, 271 F.3d

11, 16 (1st Cir. 2001); United States v. Anderson, 184 F.3d 479,

481 (5th Cir. 1999); United States v. Elmore, 108 F.3d 23, 27-28

(3d Cir. 1997); see also United States v. Ramirez-Ramirez, 296

F.    App’x    330,      330    (4th     Cir.      2008).         We    thus      conclude       that

Castilla has not demonstrated any error, let alone plain error,

in the court’s application of USSG § 4A1.1(d) in this case.

               Because         we     discern          no   procedural         error       in     the

calculation of Castilla’s criminal history score, which is the

                                                   5
sole    issue    presented     for   our       consideration,   we    affirm     the

criminal judgment.        We dispense with oral argument because the

facts   and     legal   contentions    are      adequately   presented      in   the

materials     before    this   court   and      argument   would     not   aid   the

decisional process.



                                                                           AFFIRMED




                                           6
