UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-4581

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

ANTOLIN RAMIREZ-RAMIREZ, a/k/a Javier Ramirez-Ramirez, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

District Judge. (3:06-cr-00137) 

Submitted: September 30, 2008 Decided: October 14, 2008 

Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Russell W. Mace, III, RUSSELL MACE & ASSOCIATES, PA, Myrtle 

Beach, South Carolina, for Appellant. Gretchen C. F. Shappert, 

United States Attorney, Adam Morris, Assistant United States 

Attorney, Charlotte, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Antolin Ramirez-Ramirez pled guilty to illegal 

reentry, 8 U.S.C. § 1326(a), (b)(2) (2000), and received a 

sentence of sixty-eight months imprisonment. He appeals his 

sentence, contending that the district court plainly erred in 

awarding two criminal history points for commission of the 

offense while under a sentence of probation, U.S. Sentencing 

Guidelines Manual § 4A1.1(d) (2006). We affirm. 

 Because Ramirez-Ramirez did not object to his criminal 

history calculation in the district court, review is for plain 

error. United States v. Olano, 507 U.S. 725, 732 (1993) (error 

occurred, which was plain, affected defendant’s substantial 

rights, and “seriously affects the fairness, integrity, or 

public reputation of judicial proceedings”). 

 Two criminal history points are prescribed under USSG 

§ 4A1.1(d) “if the defendant committed the instant offense while 

under any criminal justice sentence, including probation . . . 

.” Application Note 4 explains that a “criminal justice 

sentence” is any “sentence countable under § 4A1.2 . . . having 

a custodial or supervisory component, although active 

supervision is not required for this item to apply.” 

Application Note 4 further provides that “[a] defendant who 

commits the instant offense while a violation warrant from a 

prior sentence is outstanding (e.g., a probation . . . violation 

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warrant) shall be deemed to be under a criminal justice sentence 

for the purposes of this provision if that sentence is otherwise 

countable, even if that sentence would have expired absent such 

warrant.” See USSG § 4A1.2(m) (same). 

 Ramirez-Ramirez acknowledges that, in applying 

§ 4A1.1(d), the sentencing court need not consider whether an 

outstanding warrant is stale or whether state authorities were 

lax in executing the warrant. See United States v. Davis, 313 

F.3d 1300, 1305-06 (11th Cir. 2002); United States v. Mateo, 271 

F.3d 11, 16 (1st Cir. 2001); United States v. Anderson, 184 F.3d 

479, 481 (5th Cir. 1999); United States v. Elmore, 108 F.3d 23, 

27-28 (3d Cir. 1997); United States v. Camilo, 71 F.3d 984 (1st 

Cir. 1995). 

 Ramirez-Ramirez relies on the First Circuit’s 

observation in Camilo that an unreasonable delay in the 

execution of a warrant might give rise to a due process issue 

under § 4A1.1(m), although not in Camilo’s case, because he was 

responsible for the delay. Camilo, 71 F.3d at 988 & n.7.* 

 *

The First Circuit later held that, “in determining whether 

to add criminal history points under USSG § 4A1.1(d), a 

sentencing court ordinarily is not required to look beyond the 

face of the state-court record, but, rather, may give weight to 

an outstanding warrant without inquiring into the validity of 

that warrant.” Mateo, 271 F.3d at 16 (noting that Camilo only 

“left open the question of whether defects in a state warrant 

process might be considered by the sentencing court”). 

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Ramirez-Ramirez argues that, unlike Camilo, he was not 

responsible for the delay in the execution of the warrant 

against him. He contends that the § 4A1.1(d) enhancement 

violated due process in his case because (1) he did not have an 

opportunity to have the warrant set aside because he was 

deported immediately after he finished serving his prison 

sentence; (2) he did not willfully fail to appear in court but 

was prevented by his incarceration on another charge; (3) state 

authorities issued another warrant when the original warrant 

expired while he was in prison; and (4) state authorities could 

have discovered his location in prison and executed the warrant. 

 Because the district court was not required to 

consider the circumstances surrounding the warrant outstanding 

against Ramirez-Ramirez at the time of the instant offense, 

Ramirez-Ramirez has not identified any error on the part of the 

district court in adopting that recommendation in the 

presentence report. We conclude that the district court did not 

err, much less plainly err, in determining Ramirez-Ramirez’s 

criminal history, and no due process violation occurred. 

 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 

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materials before the court and argument would not aid the 

decisional process. 

AFFIRMED