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The Honorable Jimm Larry Hendren, Chief Judge, United States District Court

for the Western District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3849

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United States of America, 

Appellee,

v.

Ismael Garduno-Trejo,

Appellant.

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Appeal from the United States

District Court for the

Western District of Arkansas. 

 [UNPUBLISHED]

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Submitted: September 24, 2010

 Filed: October 7, 2010

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Before LOKEN, HANSEN, and BENTON, Circuit Judges. 

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PER CURIAM.

Ismael Garduno-Trejo pleaded guilty to knowingly distributing a mixture or

substance containing more than 50 grams of actual methamphetamine in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). The district court1

 calculated a total offense

level of 31 and a criminal history category III (based on five criminal history points),

and imposed a sentence of 135 months' imprisonment, at the bottom of the advisory

sentencing guidelines range of 135 to 168 months' imprisonment.
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On March 17, 2009, one week before he committed the instant offense,

Garduno-Trejo pleaded guilty in the Circuit Court of Benton County, Arkansas, to

possession of a controlled substance and delivery of a controlled substance. At that

proceeding, the court orally pronounced that Garduno-Trejo was sentenced to five

years' probation for the possession count and a ten year suspended sentence for the

delivery count. On March 26, two days after he committed the instant federal offense,

the Circuit Court of Benton County signed and entered a judgment and disposition

order reflecting the pleas of guilty and sentences which had occurred and had been

imposed on March 17, 2009. On November 9, 2009, the Circuit Court of Benton

County revoked both Garduno-Trejo's probation and his suspended sentence, and

sentenced him to fifty years' imprisonment with ten years suspended.

In federal court, the Presentence Investigation Report (PSR), as updated on

November 12, 2009, assessed Garduno-Trejo three criminal history points for the

Arkansas state convictions and two additional criminal history points because

Garduno-Trejo was under a criminal justice sentence (probation on one and a separate

ten year suspended sentence on the other stemming from the Arkansas state

convictions) when he committed the instant federal offense of conviction on March

24, 2009. Garduno-Trejo objected to the two additional criminal history points

assessed in the PSR. He asserted that because the judgment and disposition order for

the Arkansas state offenses was not signed and entered until March 26, 2009, he was

not under a criminal justice sentence on March 24, 2009, when he committed the

instant federal offense, reasoning that in Arkansas an oral pronouncement of a

sentence by the judge does not become effective until a written judgment and

disposition order is entered.

At the federal sentencing hearing, the district court ruled that, for purposes of

the United States Sentencing Guidelines (U.S.S.G.), Garduno-Trejo was under a

criminal justice sentence at the time he committed the instant federal offense on
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March 24, 2009, because he had pleaded guilty in state court and had been sentenced

on March 17, 2009. Thus, the district court held that Garduno-Trejo was properly

assessed with the two additional criminal history points and overruled his objection

to the PSR.

Garduno-Trejo appeals, arguing that the district court erred in assessing the two

criminal history points because he was not under a criminal justice sentence when he

committed the instant federal offense. We review a district court's factual findings for

clear error and its application of the advisory sentencing guidelines to those facts de

novo. United States v. Morgan, 390 F.3d 1072, 1073 (8th Cir. 2004).

Section 4A1.1(d) of the U.S.S.G. states, "Add 2 points if the defendant

committed the instant offense while under any criminal justice sentence, including

probation, parole, supervised release, imprisonment, work release, or escape status."

Application note 4 to U.S.S.G. § 4A1.1 states that "[f]or the purposes of this item [§

4A1.1(d)], a 'criminal justice sentence' means a sentence countable under § 4A1.2."

Section 4A1.2(a)(1) explains that "[t]he term 'prior sentence' means any sentence

previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea

of nolo contendre, for conduct not part of the instant offense." Section 4A1.2(a)(4)

explains 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."

It also provides that "convicted of an offense" means that the guilt of the defendant

has been established by a guilty plea (among other methods), and it is the date of the

plea that determines the date of conviction, not the entering of a final judgment. See

United States v. Driskell, 277 F.3d 150 (2d Cir. 2002); United States v. Pierce, 60

F.3d 886 (1st Cir. 1995).

Garduno-Trejo claims that his Arkansas state sentence was "'protracted and

convoluted'" such that the district court should not have included the state court
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sentence in assessing criminal history points. (Appellant's Br. at 11 (quoting United

States v. Boaz, 558 F.3d 800, 805 (8th Cir. 2009))). Boaz, however, involved a

delayed guilty plea and deferred sentence under Arkansas Code Annotated § 16-93-

303. Under that statute, a defendant may be discharged without an adjudication of

guilt and his record may be expunged if he successfully completes probation. See id.

at 805 n.5; Ark. Code Ann. § 16-93-303(b). There is nothing so protracted and

convoluted here. Garduno-Trejo pleaded guilty to a felony, was sentenced to

probation, and later had his probation revoked. This procedural history is short and

straightforward, and we cannot say that it was "protracted and convoluted" such that

the district court should not have included the sentence when assessing criminal

history points.

Garduno-Trejo asserts that an Arkansas state sentence is not final until the filing

of the judgment order such that an oral sentence was not sufficient for him to be

considered under a criminal justice sentence on March 24, 2009, when he committed

the instant offense. However, as we have previously explained, "[w]hether a prior

sentence counts for criminal history purposes is a question of federal, not state

law. . . . State law is relevant only to the extent that it describes the pertinent details

of a defendant's prior sentence." Morgan, 390 F.3d at 1074. See also United States

v. Martinez-Cortez, 354 F.3d 830, 832 (8th Cir.) (explaining that "[w]hether [a

defendant] was under a criminal justice sentence for purposes of § 4A1.1(d) is a

question of federal law" in holding that despite a state court's decision to modify the

defendant's state sentences after they were served for reasons unrelated to his

innocence or errors of law, he was still under a sentence of probation for the purposes

of U.S.S.G. § 4A1.1(d) and should still have been assessed for those criminal history

points), cert. denied, 543 U.S. 847 (2004). Garduno-Trejo's finality argument is also

severely undercut by the Arkansas Circuit Court's revocation of both his probation and

his suspended sentence because he committed the instant federal offense two days

before Garduno-Trejo claims he was put on probation by the written order filed on

March 26, 2009. Whether or not the oral sentence was a final criminal justice
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sentence under Arkansas law, for purposes of federal sentencing law, Garduno-Trejo

was under a criminal justice sentence at the time he committed the instant offense on

March 24, 2009.

Garduno-Trejo also argues that he should not have received the two additional

criminal history points because the state court acted improperly in revoking his

probation and suspended sentence. With this argument, Garduno-Trejo seeks to

collaterally attack his prior state court conviction, but a defendant "cannot collaterally

attack a prior state conviction during a federal sentencing proceeding." United States

v. El-Alamin, 574 F.3d 915, 928 (8th Cir. 2009). Thus, Garduno-Trejo's challenge to

the state court's decision to revoke his probation and suspended sentence fails.

Finally, Garduno-Trejo maintains that he should not have received the two

additional criminal history points because his state court sentence was on appeal.

However, U.S.S.G. § 4A1.2(l) explains that prior sentences under appeal are counted

for the purposes of assessing criminal history points.

Accordingly, the judgment of the district court is affirmed.

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