IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40678

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JUAN JOSE ANZUETO-BARRIOS, also known as Jose Adolfo Perez-Vasquez,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:14-CR-388-1

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Juan Jose Anzueto-Barrios pleaded guilty to being found in the United 

States after deportation in violation of 8 U.S.C. § 1326 and was sentenced to 

37 months of imprisonment with no supervised release. Anzueto-Barrios 

argues that the district court misapplied the Sentencing Guidelines when it 

added two points to his criminal history score under U.S.S.G. § 4A1.1(d) 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 17, 2015

Lyle W. Cayce

Clerk

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because he was no longer under his sentence of probation for his 2007 

California conviction.

Section 4A1.1(d) of the Sentencing Guidelines provides that two points 

shall be added to a defendant’s criminal history score “if the defendant 

committed the instant offense while under any criminal justice sentence, 

including probation, parole, supervised release, imprisonment, work release, 

or escape status.” The Application Notes state that § 4A1.1(d) applies “if the 

defendant committed any part of the instant offense (i.e., any relevant conduct) 

while under any criminal justice sentence, including probation.” § 4A1.1, cmt. 

n.4. For purposes of § 4A1.1(d), if a defendant commits the instant offense 

while a violation warrant from a prior sentence is outstanding (e.g., a 

probation, parole, or supervised release violation warrant), he shall be deemed 

to be under a criminal justice sentence if that sentence is otherwise countable, 

even if that sentence would have expired absent the violation warrant. 

U.S.S.G. § 4A1.2(m); see also § 4A1.1, cmt. n. 4.

In August of 2007, Anzueto-Barrios was sentenced to 50 days in custody, 

which sentence was suspended, and he was placed on probation for 36 months. 

Anzueto-Barrios was deported on November 2, 2007. His term of probation 

was revoked in absentia, and an arrest warrant was issued and remained 

outstanding pending his sentencing on the probation violation. Based on these 

facts, Anzueto-Barrios argues that § 4A1.1(d) and § 4A1.2(m) do not apply 

because his probation was revoked and there was no longer an outstanding 

probation violation warrant. The Government argues that the warrant for 

Anzueto-Barrios’s arrest pending sentencing on the probation revocation was 

outstanding and that his original judgment and sentence were in full force and 

effect when he committed this § 1326 offense. Because the parties do not

dispute the facts but only whether the particular Guideline applies based on 

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those facts, we review this issue de novo. United States v. Gonzales, 40 F.3d 

735, 738 (5th Cir. 1994), abrogated on other grounds by United States v. 

Dunigan, 555 F.3d 501 (5th Cir. 2009). 

Anzueto-Barrios cannot avoid the 2-point enhancement at issue here; his 

attempt is an exercise in creative labeling and nothing more. The Sentencing 

Guidelines provide that “[w]here a defendant has been convicted of an offense, 

but not yet sentenced, such conviction shall be counted as if it constituted a 

prior sentence under § 4A1.1(c) if a sentence resulting from that conviction 

otherwise would be countable.” § 4A1.2(a)(4). The revocation of AnzuetoBarrios’s probation placed him in the same position as if he were convicted

awaiting sentencing: a lawful, valid judgment against him for which he is yet 

to be sentenced. That is, he was essentially “convicted” for violating his 

probation. If a conviction is countable before sentencing, then a defendant is

under a “criminal justice sentence” before sentencing for purposes of 

§ 4A1.1(d), whether it is an original sentencing or a sentencing on a probation 

violation.

This commonsense holding also avoids creating perverse incentives. In 

United States v. Anderson, 184 F.3d 479, 481 (5th Cir. 1999) (internal 

quotations omitted), we held that 

[i]n determining whether an outstanding violation warrant 

triggers a two-point increase, the Guidelines do not require us to 

assess the state authorities’ diligence in executing a violation 

warrant. Rather the two-point increase applies to any defendant 

who commits the instant offense while a violation warrant from a

prior sentence is outstanding.

If Anzueto-Barrios’s probation violation warrant had been pending upon his 

illegal reentry and had not been acted upon with the in absentia revocation, 

then § 4A1.1(d) and § 4A1.2(m) would apply based on Anderson. However, in 

this case, although the term of probation was revoked, an arrest warrant 

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pending sentencing on the probation revocation was issued and still in effect. 

Under Anzueto-Barrios’s proposal if the State does not act with diligence on a

revocation warrant, the existence of the outstanding warrant means that the 

defendant is still under a criminal justice sentence under § 4A1.1(d), but if the 

State moves forward with the revocation in absentia, revokes probation, and 

issues an arrest warrant for the defendant pending sentencing on the 

probation violation, the defendant is no longer under a criminal justice 

sentence. Such a result would be incoherent.

Further, Anzueto-Barrios was under a criminal justice sentence within 

the meaning of § 4A1.1(d) based on his original 50-day sentence. Under 

California law, if a sentence has been imposed and its execution suspended, as 

was done in this case, the revocation of the suspension brings the former 

judgment into full force and effect. See People v. Howard, 946 P.2d 828, 832

(Cal. 1997). Anzueto-Barrios argues that the summary revocation of his 

probation should not be treated as automatically imposing the previously 

imposed but suspended custody sentence; however, he does not explain what 

his status would then be post-revocation and pre-sentencing. The original 

criminal justice sentence of 50 days of imprisonment did not cease to exist upon 

the summary revocation of his probation. Upon revocation of his probation, 

Anzueto-Barrios was, by operation of law, “under” his original “criminal justice 

sentence.” 

We reached a similar conclusion in United States v. Mota-Aguirre, 

186 F.3d 596, 598-99 (5th Cir. 1999). The defendant there was granted an 

“Out-of-Country Conditional Pardon,” releasing him from prison for immediate 

deportation; the sentence remained in effect while the defendant was granted 

liberty from confinement as long as he abided by the specified restrictions 

contained in his pardon. He violated those conditions when he illegally 

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reentered the United States six months after his conditional pardon. Id. at 

598-99. We concluded that the district court properly classified the conditional 

pardon as a criminal justice sentence under § 4A1.1(d). Id. at 599. Similarly, 

Anzueto-Barrios was sentenced to 50 days of imprisonment, suspended in favor 

of probation, but he was determined to have violated his probation, and the 

original sentence remains effective for purposes of § 4A1.1(d). See Howard, 

946 P.2d at 832.

We conclude that Anzueto-Barrios was under a criminal justice 

sentence—either by virtue of the probation violation or his original 50-day 

sentence—within the meaning of § 4A1.1(d) when he reentered this country 

illegally. The district court did not err in applying this Guideline adding two 

points to his criminal history score.

AFFIRMED.

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