                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-1994
                                    ___________

United States of America,                *
                                         *
                   Appellee,             * Appeal from the United States
                                         * District Court for the District
         v.                              * of Minnesota.
                                         *
Jose Cervantes,                          *      [UNPUBLISHED]
                                         *
                   Appellant.            *
                                    ___________

                               Submitted: February 7, 2006
                                  Filed: February 8, 2006
                                   ___________

Before MELLOY, FAGG, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

      Jose Cervantes appeals the 120-month concurrent prison sentences the district
     *
court imposed after Cervantes pleaded guilty to a drug-conspiracy charge and a
charge for aiding and abetting drug possession with intent to distribute. Cervantes
argues the court erroneously assessed a total of three criminal-history points, thus
rendering him ineligible for safety-valve relief under U.S.S.G. § 5C1.2.




         *
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
      Having carefully reviewed the record, we conclude the district court’s
calculation was correct. Contrary to Cervantes's argument, the district court properly
assessed two criminal-history points because it is undisputed a valid warrant for a
probation violation existed at the time Cervantes committed the crimes in this case.
See U.S.S.G. § 4A1.2(m) (defendant who commits instant offense while, e.g.,
probation violation warrant is outstanding is deemed under a criminal justice sentence
for purposes of U.S.S.G. § 4A1.1(d)). Accordingly, we affirm.
                       ______________________________




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