* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, t he panel has determined unanimously to honor the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). T he case is therefore ordered submitted without oral ar gument. 

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

### MAR 17 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 99-1355 JAVIER LOPEZ-CARREON, Defendant-Appellant. (D.C. No. 99-CR-125-B) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK , HENRY , and LUCERO , Circuit Judges. **
Defendant Javier Lopez-Carreon pled guilty to illeg al reentry after deportation in violation of 8 U.S.C. § 1326(a). Th e district court sentenced Defendant to 57 months imprisonment. Defendant app eals the district court’s addition of 2 points to his criminal history pursuant to U.S.S.G. § 4A1.1(d) for-2-

committing an offense while under a criminal justic e sentence. We exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U. S.C. § 1291, and affirm.
I. Defendant is a citizen of Mexico. On June 30, 1997 , Defendant pled guilty to possession with intent to distribute a controlle d substance in violation of Colo. Rev. Stat. § 18-18-405(2)(a)(I). The state court s entenced Defendant to 5 years in prison, suspended on the condition that Defendant b e deported to Mexico. Thereafter, Defendant illegally reentered the Unite d States. Defendant was again apprehended in Colorado, and on March 1, 1999, Defe ndant pled guilty to possession of a controlled substance. The state co urt sentenced Defendant to 4 years in prison, again suspended on the condition t hat Defendant be deported to Mexico. Rather than immediately instituting deport ation proceedings, the state delivered Defendant to federal custody for prosecut ion for illegal reentry after deportation. Defendant pled guilty to the illegal reentry charge . Over Defendant’s objection, the district court adopted the presenten ce report’s recommendation and added 2 criminal history points pursuant to U.S.S.G . § 4A1.1(d). Section 4A1.1(d) provides for the addition of 2 criminal hi story points “if the defendant committed the instant offense while under any crimi nal justice sentence, including probation, parole, supervised release, imprisonment , work release, or escape-3-

status.” Id. The commentary notes define “criminal justice se ntence” to include any sentence with “a custodial or supervisory compo nent, although active supervision is not required for this item to apply.” Id. at § 4A1.1(d) comment. (n.4). “For example, a term of unsupervised probat ion would be included; but a sentence to pay a fine, by itself, would not be included.” Id. The district court added another point to Defendant’s criminal historybecause Defendant “committed the instant offense less than two years after release from imprisonment on a sentence counted under [§ 4A1.1(b)] . . . .” Id. at § 4A1.1(e). The general rule under the guidelines is to add 2 points. Id. If the district court has already added 2 points under § 4A1.1(d), then t he district court only adds 1 point under § 4A1.1(e). Id. The district court found that Defendant had 8 criminal history points, resulting in a criminal hi story category of IV. Category IV covers the range of 7 to 9 criminal history points. Id. at § 5A.
II. Defendant argues that the district court erred in a dding 2 criminal history points for commission of an offense while under a c riminal justice sentence. He argues that he was not under a criminal justice sen tence because his sentence had been suspended on the condition of deportation. Th e Government argues that this court should affirm Defendant’s sentence because th e district court’s application of § 4A1.1(d) had no effect on Defendant’s criminal history category.-4-

If Defendant prevailed on his claim that he was notunder a criminal justice sentence at the time he committed the offense, then the district court could not add 2 points pursuant to § 4A1.1(d). Under § 4A1.1 (e), however, the district court would then add 2 points rather than 1 for com mission of an offense within two years of release. Defendant would have 7 crimi nal history points, still resulting in a criminal history category of IV. Be cause Defendant’s criminal history category remains the same, we do not need t o resolve this criminal history dispute. See United States v. Ortiz , 63 F.3d 952, 955 (10th Cir. 1995) (holding that the court did not have to reach the criminal h istory issue because even if the court found for defendant and subtracted one crimin al history point, he would remain within the same criminal history category). We affirm Defendant’s
sentence. AFFIRMED.

Entered for the Court,

Bobby R. Baldock Circuit Judge