Craig Thorstenson v. Gale Norton

*The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1994
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Minnesota.
*
Jose Cervantes, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 7, 2006
Filed: February 8, 2006
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Before MELLOY, FAGG, and BENTON, Circuit Judges.
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PER CURIAM.
Jose Cervantes appeals the 120-month concurrent prison sentences the district
court * imposed after Cervantes pleaded guilty to a drug-conspiracy charge and a
charge for aiding and abetting drug possession with intent to distribute. Cervantes
argues the court erroneously assessed a total of three criminal-history points, thus
rendering him ineligible for safety-valve relief under U.S.S.G. § 5C1.2.

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-2-
Having carefully reviewed the record, we conclude the district court’s
calculation was correct. Contrary to Cervantes's argument, the district court properly
assessed two criminal-history points because it is undisputed a valid warrant for a
probation violation existed at the time Cervantes committed the crimes in this case.
See U.S.S.G. § 4A1.2(m) (defendant who commits instant offense while, e.g.,
probation violation warrant is outstanding is deemed under a criminal justice sentence
for purposes of U.S.S.G. § 4A1.1(d)). Accordingly, we affirm.
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