* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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. 

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

### MAR 28 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. CARLOS SALAZAR-MEDINA,

Defendant - Appellant. No. 98-4225 (D. Ct. No. 98-CR-367) (D. Utah)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and HENRY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. Defendant appeals the district court’s enhancement of his sentence for illegal re-entry based on a prior conviction. We e xercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), and af firm.- 2 - I. In 1997, a Washington state court sentenced defendant, an illegal alien, for distribution of a controlled substance. The Immigr ation and Naturalization Service subsequently deported him. Defendant then illegally re-entered the United States. Eventually, Utah undercover detecti ves arrested him for selling cocaine. On July 1, 1998, a jury convicted defenda nt of distribution and possession of cocaine. A Utah state court sentence d defendant to thirty days in jail and thirty-six months’ probation. Shortly the reafter, the United States indicted defendant for illegal re-entry in violatio n of 8 U.S.C. § 1326, and defendant pled guilty. Defendant’s Presentence Report (PSR) recommended a base offense level of 21: 8 points for unlawfully entering or remainin g in the United States, 16 points for a previous deportation after conviction in Washington state for an aggravated felony, and -3 points for acceptance of responsibility. The PSR further recommended a criminal history category of IV based on a criminal history score of 7: 3 points for defendant’s Washin gton conviction, 1 point for defendant’s Utah conviction, 2 points for committin g an offense while on probation, and 1 point for committing an offense le ss than two years after release from prison. At sentencing, defendant objected to the addition o f one criminal history- 3 -

point for his Utah conviction. He claimed that the district court should not count his Utah conviction as a prior offense because the Utah offense occurred at the same time and during the same course of conduct as the illegal re-entry offense. The district court denied the objection, and defend ant now appeals his sentence.
II. We review de novo a district court’s legal interpre tation of the guidelines, and we review for clear error its underlying factua l findings. United States v. Cuthbertson , 138 F.3d 1325, 1326 (10th Cir. 1998). Defendant contends the district court erred in treating his Utah drug conv iction as a prior offense in calculating the criminal history portion of his gui deline sentence. We disagree. The United States Sentencing Guidelines (“U.S.S.G.” ) provide that a district court should use a defendant’s “prior sent ence” in calculating his criminal history. U.S.S.G. Manual § 4A1.1 (1998). Section 4A1.2(a)(1) defines a prior sentence as “any sentence previously imposed upon a djudication of guilt . . . for conduct not part of the instant offense.” Conduct is part of the instant offense only if it is “relevant conduct” to the instant off ense. Id. § 4A1.2 commentary n.1. Thus, “a conviction will not be treated as a prior sentence (and no criminal history points can be added) so long as the underly ing conduct meets the definition of relevant conduct.” United States v. Keifer , 198 F.3d 798, 801 (10th Cir. 1999).- 4 -

Defendant claims that his Utah conviction constitut es relevant conduct as defined in U.S.S.G. § 1B1.3(a)(2). Under this sect ion, conduct is relevant only if three prerequisites are met.

First, there must be a finding that the offense in question involved conduct described in §§ 1B1.3(a)(1)(A) and(B). Second, the offense must be the type of offense that, if the defendant had been convicted of both offenses, would require grouping with the offense of conviction for sentencing purposes under U.S.S.G. § 3D1.2(d). Thi rd, the offense must have been “part of the same course of conduct or common scheme or plan.” United States v. Taylor , 97 F.3d 1360, 1363 (10th Cir. 1996) (quoting U.S. S.G. § 1B1.3(a)(2)). Here, the district court found that defendant’s Utah drug conviction and the instant offense of illegal re-entry were not suffic iently connected or related to be considered part of the same course of conduct. The refore, the district court held that defendant’s prior Utah conviction did not cons titute relevant conduct. Two offenses are part of the same course of conductwhere there is “sufficient similarity and temporal proximity [betw een the acts] to reasonably suggest that repeated instances of criminal behavio r constitute a pattern of criminal conduct.” Id. at 1365 (internal quotation marks and citation omi tted). Commentary to the Guidelines further provides that

[o]ffenses . . . may . . . qualify as part of the s ame course of conduct if they are sufficiently connected or re lated to each other as to warrant the conclusion that they are part- 5 - of a single episode, spree, or ongoing series of of fenses. Factors . . . to be considered . . . include the de gree of similarity of the offenses, the regularity (repetit ions) of the offenses, and the time interval between the offense s. U.S.S.G. § 1B1.3 commentary n.9(B). The offenses of illegal re-entry and distribution and possession of cocaine are not similar. Although defendant committed thes e crimes within a relatively short time interval, these offenses do not suggest a pattern of criminal conduct or warrant the conclusion that they are part of a sing le episode, spree, or ongoing series of offenses. Thus, we conclude the districtcourt did not clearly err in finding that defendant’s Utah conviction and his il legal re-entry offense were not part of the same course of conduct. The district c ourt’s “course of conduct” finding was sufficient to preclude defendant from m eeting the prerequisites of the § 1B1.3(a)(2) relevant conduct test. See Keifer , 198 F.3d at 802. Accordingly, the district court properly used defendant’s Utah c onviction to calculate his
sentence. AFFIRMED. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge