United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-1183

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Guadalupe Mendoza-Nava, also known *

as Guadalupe Mendoza Martinez, also * [UNPUBLISHED]

known as Guadalupe Ascencio, also *

known as Noel Curz-Martine, also *

known as Guadalupe Mendoza- *

Martinez, also known as Noe Cruz, *

also known as Guadalupe Guadalupe- *

Ascencio, also known as Noel *

Curzmartine, also known as Guadalupe *

Mendoza, also known as Vicente *

Franco, also known as Natividad *

Canton-Gaspar, *

*

Appellant. *

___________

Submitted: October 5, 2007

Filed: October 10, 2007

___________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

___________

PER CURIAM.
1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.

-2-

Guadalupe Mendoza-Nava pleaded guilty to unlawfully re-entering the United

States after having been previously removed following his conviction for an

aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, he challenges

for the first time the district court’s1

 calculation of his criminal history points under

the advisory Guidelines. 

We review the court’s criminal history calculations for plain error. See United

States v. Plancarte-Vazquez, 450 F.3d 848, 854 (8th Cir. 2006). Under this standard,

we will reverse only judgments which affect substantial rights and seriously affect the

fairness, integrity, or public reputation of the judicial proceedings. See United States

v. Kamerud, 326 F.3d 1008, 1013 (8th Cir. 2003). 

The record clearly establishes that, even if Mendoza-Nava was incorrectly

assessed 2 criminal history points for committing the instant offense while on

probation for a gross misdemeanor offense, the error was harmless because MendozaNava was undisputedly on parole for a domestic assault conviction at the time of the

offense. See U.S.S.G. § 4A1.1(d) (“[a]dd 2 points if the defendant committed the

instant offense while under any criminal justice sentence, including . . . parole”);

United States v. Gutierrez, 437 F.3d 733, 737 (8th Cir. 2006) (even if it was error to

include two additional criminal history points, error was harmless because it did not

alter Guidelines range); see also Fed. R. Crim. P. 32(i)(3)(A) (at sentencing court may

accept any undisputed portion of presentence report as finding of fact); United States

v. English, 329 F.3d 615, 617 (8th Cir. 2003) (court of appeals can affirm district

court’s judgment on grounds supported by record, even if grounds were rejected by

trial court). Consequently, even if it was also error to assess the other criminal history

point he disputes on appeal, any error was also harmless--because a reduction from

14 to 13 criminal history points could not affect his criminal history category. See
-3-

U.S.S.G. § 5 Sentencing Table (13 or more criminal history points results in Category

VI criminal history).

Accordingly, we conclude that Mendoza-Nava has not established plain error,

and the judgment is affirmed.

______________________________