*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 22 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.JOSE LUIS HERNANDEZBUSTAMONTE, Defendant-Appellant. No. 98-4115 (D. Utah) (D.Ct. No. 98-CR-80-S)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 See Anders v. California , 386 U.S. 738, 744 (1967). Mr. HernandezBustamonte’s counsel also filed a motion to withdraw after determining this appeal is frivolous, thereby compromising his ability to effectively and ethically represent him. Motion for Leave to Withdraw as Counsel dated 12/7/98. We grant counsel’s motion to withdraw.
-2- Appellant Jose Luis Hernandez-Bustamonte appeals hi s seventy-month sentence after pleading guilty to re-entry into the United States as an alien following deportation for a felon conviction, in vi olation of 8 U.S.C. § 1326. Mr. Hernandez-Bustamonte, through his attorney’s Anders ’ brief, 1 challenges the computation of his sentence based on: (1) a 16-lev el enhancement for his prior felony conviction for possession of cocaine, which he claims is not an “aggravated” felony for the purpose of sentencing u nder United States Sentencing Guideline § 2L1.2; and (2) a one-point criminal his tory assessment for a previous conviction for burglary, which he claims should notbe considered since it involved domestic violence and excessively increase d his criminal history. In a pro se filing, Mr. Hernandez-Bustamonte also claims violation of his constitutional rights under 18 U.S.C. § 3161 becau se his indictment occurred thirty days after his initial arrest for distributi on of a controlled substance. We affirm Mr. Hernandez-Bustamonte’s conviction and se ntence.
We review the district court’s legal interpretation of the Sentencing-3-

Guidelines de novo

. United States v. Aranda-Hernandez , 95 F.3d 977, 981 (10th Cir. 1996), cert. denied, 520 U.S. 1144 (1997). Applying this standard of review, we note that a conviction for possession of a contr olled substance constitutes an aggravated felony for the purposes of United States Sentencing Guideline § 2L1.2. Aranda-Hernandez , 95 F.3d at 981-82; United States v. Cabrera-Sosa , 81 F.3d 998, 1000 (10th Cir.), cert. denied, 117 S. Ct. 218 (1996). Therefore, the district court properly applied Mr. Hernandez-Busta monte’s prior felony conviction for possession of cocaine in enhancing h is sentence under § 2L1.2.

Mr. Hernandez-Bustamonte next claims the district c ourt improperly assessed a criminal history point for his burglary conviction. He argues the burglary and related assault should not be consider ed because they are based on a domestic dispute with his ex-wife. However, the re cord shows, and his counsel acknowledges, the Probation Officer demonstrated th e assessment’s merit at the sentencing hearing and Mr. Hernandez-Bustamonte mad e no further objection and accepted the one point-assessment. Because he fail ed to challenge the presentencing report on this conviction at the sent encing hearing, Mr. HernandezBustamonte waived his right to challenge the assess ment of a criminal history point, absent a demonstration of plain error. United States v. Saucedo, 950 F.2d 1508, 1518 (10th Cir. 1991). On appeal, Mr. Hernan dez-Bustamonte has made no-4-

such showing of error, and therefore, we conclude t he district court properly applied a criminal point for the burglary convictio n.
Finally, Mr. Hernandez-Bustamonte claims violation of his constitutional rights under 18 U.S.C. § 3161(b), because his indic tment for re-entry into the United States as an alien occurred thirty days afte r his initial arrest for distribution of a controlled substance. We review de novo compliance with the requirements of the Speedy Trial Act, including § 3 161. United States v. Mora , 135 F.3d 1351, 1354 (10th Cir. 1998). Section 3161 (b) of the Act requires an indictment be filed within thirty days from the dat e of the individual’s arrest. 18 U.S.C. § 1361(b).

On review of the record, we note that state authori ties arrested Mr. Hernandez-Bustamonte on January 4, 1998 for distrib ution of a controlled substance. However, his arrest for this drug matte r is unrelated to his illegal reentry violation and does not trigger the period dur ing which the indictment for his illegal re-entry must occur. Rather, authorities d id not learn of Mr. HernandezBustamonte’s illegal re-entry status until he admitted to it on February 6, 1998. Based on his admission and the results of a prelimi nary investigation, a grand jury issued an indictment against Mr. Hernandez-Bustamonte on February 11, 1998,-5-

for violation of 8 U.S.C. § 1326. The Immigration and Naturalization Service then filed a detainer against Mr. Hernandez-Bustamo nte on February 18, 1998. Thus, the indictment occurred five days after admis sion and discovery of his illegal alien status and six days prior to issuance of the detainer. No violation of 18 U.S.C. § 3161(b) occurred.

For these reasons, Mr. Hernandez-Bustamonte’s convi ction and sentence

are AFFIRMED
. Entered by the Court: WADE BRORBY United States Circuit Judge