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United States v. Chavarria, 10th Cir. (2000)
United States v. Chavarria, 10th Cir. (2000)
FEB 17 2000
PATRICK FISHER
Clerk
v.
No. 99-1444
(D.C. No. 98-CR-350-D)
(District of Colorado)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, HENRY and LUCERO, Circuit Judges.
I
After pleading guilty to conspiring to distribute methamphetamine in
violation of 21 U.S.C. 841 and 18 U.S.C. 2, the district court sentenced
Chavarria to fifty-nine months imprisonment and five years supervised release.
The district court determined Chavarrias total offense level under the Sentencing
Guidelines to be twenty-seven and his Criminal History Category to be II. 1
Chavarria received two criminal history points based on a prior Colorado state
convictiona 1996 conviction for disorderly conduct, to which Chavarria pleaded
guilty and was sentenced to six months imprisonment with credit for time served.
Although this conviction is reflected in the records of the Rio Grande County
Clerks Office, a formal judgment or mittimus was never prepared because,
according to a letter from the Clerk, the time had already been served.
(Appellants Br. Ex. D at 1.) On appeal, Chavarria challenges the district courts
imposition of two criminal history points based on his prior state conviction for
disorderly conduct, arguing the conviction is invalid because no mittimus was
entered, the state court failed to inform him of his right to appeal, and his right to
counsel was violated. 2
Based on the governments motion pursuant to U.S.S.G. 5K1.1, the
district court departed downward from the recommended imprisonment range of
78 to 97 months to 59 months.
1
II
We review for clear error the district courts factual findings regarding
sentencing and review de novo its legal interpretation of the Sentencing
Guidelines. See United States v. Henry, 164 F.3d 1304, 1310 (10th Cir.), cert.
denied, 119 S. Ct. 2381 (1999). We are mindful of our obligation to give due
deference to the district courts application of the guidelines to the facts. Id.
(citing United States v. Cantley, 130 F.3d 1371, 1378 (10th Cir. 1997)).
Section 4A1.1(b) of the Sentencing Guidelines requires the district court to
[a]dd 2 points for each prior sentence of imprisonment of at least sixty days not
otherwise counted under 4A1.1(a). A prior sentence is defined as any
sentence previously imposed upon adjudication of guilt, whether by guilty plea,
trial, or plea of nolo contendere, for conduct not part of the instant offense.
(...continued)
defendant file a notice of appeal in the district court within ten days after the
entry of judgement. See Fed. R. App. P. 4(b)(1)(A)(i). The district court entered
final judgment on September 17, 1999. Chavarria filed his notice of appeal one
day late on September 28, 1999. Upon a finding of excusable neglect or good
cause, however, the district court may extend the time to file a notice of appeal
for no more than 30 days from the expiration of the original deadline. Fed. R.
App. P. 4(b)(4). The district court found excusable neglect because defense
counsel did not receive, and was unaware of, the entry of the final judgment until
September 28, 1999. On appeal, the government concedes timeliness. We review
for an abuse of discretion the district courts determination of the presence or
absence of excusable neglect under Fed. R. App. P. 4, see City of Chanute v.
Williams Natural Gas Co., 31 F.3d 1041, 1045 (10th Cir. 1994), and conclude that
the district court did not abuse its discretion. Accordingly, we grant appellants
motion regarding appellate jurisdiction and exercise jurisdiction over this appeal.
2
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Carlos F. Lucero
Circuit Judge
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