UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4936

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JUAN CARLOS ESCAMILLA-VASQUEZ, a/k/a Jose

Estrada,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle, Chief

District Judge. (CR-03-175-BO)

Submitted: June 18, 2004 Decided: July 13, 2004

Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Jane E. Pearce, Research &

Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.

Whitney, United States Attorney, Christine Witcover Dean, John S.

Bowler, Assistant United States Attorneys, Raleigh, North Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

Vacated by Supreme Court, January 24, 2005
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PER CURIAM:

Juan Carlos Escamilla-Vasquez pled guilty without benefit

of a plea agreement to re-entering the United States after being

deported, 8 U.S.C. § 1326(a), (b)(2) (2000), and was sentenced to

a term of sixty months imprisonment. Escamilla-Vasquez appeals his

sentence, alleging that the district court erred in calculating his

criminal history under U.S. Sentencing Guidelines Manual § 4A1.1

(2002). We affirm.

Escamilla-Vasquez’s criminal history score consisted

entirely of sentences counted under USSG § 4A1.1(c), a total of

nine points. No more than four points may be counted under

§ 4A1.1(c); however, the district court added one more point under

§ 4A1.1(f), which permits one point for each sentence for a crime

of violence that was not counted under § 4A1.1(a), (b), or (c)

because it was considered related to another sentence for a crime

of violence. See USSG § 4A1.2(a)(2) & comment. (n.3) (defining

related cases). To the subtotal of five points, another two points

were added under § 4A1.1(d) because Escamilla-Vasquez was on

probation when he committed the instant offense. The total was

seven criminal history points, which placed Escamilla-Vasquez in

category IV. 

Escamilla-Vasquez objected to the additional point

counted under § 4A1.1(f), arguing that the maximum of four points

applicable to sentences counted under § 4A1.1(c) also applied to
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points given under § 4A1.1(f). The district court determined that

the criminal history was correctly calculated.

On appeal, Escamilla-Vasquez asserts that applying

§ 4A1.1(f) to sentences counted under § 4A1.1(c), when it results

in points being assigned beyond the four-point maximum, leads to

unjust sentencing. He argues that, in his case, it constituted

impermissible triple counting, and the rule of lenity should have

been applied to preclude the extra point. Because the issue

involves the district court’s legal interpretation of the

guidelines, our review is de novo. United States v. Schaal, 340

F.3d 196, 198 (4th Cir. 2003).

Escamilla-Vasquez does not identify any error in the

criminal history calculation adopted by the district court. He

contends instead that the application of § 4A1.1(f) to § 4A1.1(c)

offenses leads to results that were not intended by the Sentencing

Commission because prior consolidated sentences for crimes of

violence expose a defendant to more criminal history points than

prior unconsolidated crimes of violence and thus penalize the

defendant for state sentencing procedures. Escamilla-Vasquez

concedes that “the guidelines should be applied as written,” and

that double or triple counting is permissible unless expressly

prohibited. See United States v. Crawford, 18 F.3d 1173, 1179-80

(4th Cir. 1994). Nonetheless, he argues that the addition of one

criminal history point under § 4A1.1(f) in his case constituted
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impermissible triple counting because his 2001 convictions were

used to enhance his offense level, USSG § 2L1.2(b)(1)(A)(ii); were

counted in his criminal history score under § 4A1.1(c); and the

sentence for one of them resulted in an additional criminal history

point under § 4A1.1(f). We find no merit in these contentions and

perceive no error in the district court’s determination of

Escamilla-Vasquez’s criminal history calculation. With respect to

the rule of lenity, which generally calls for courts to construe

ambiguous criminal statutes against the government and in favor of

the defendant, see United States v. Photogrammetric Servs., Inc.,

259 F.3d 229, 249 (4th Cir. 2001), it does not apply because the

guidelines at issue are not ambiguous.

We therefore affirm the sentence imposed by the district

court. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED