                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          September 26, 2005
                                   TENTH CIRCUIT
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 04-8068
                                                         (D. Wyoming)
 THEODORE ANTHONY ABEYTA,                            (D.Ct. No. 03-CR-98-D)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Theodore Abeyta was indicted for being a felon in possession of firearms

and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Pursuant


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
to a plea agreement, he pled guilty to being a felon in possession of firearms and

was sentenced to thirty-three months imprisonment. On appeal, Abeyta claims the

district court improperly calculated his criminal history category. In supplemental

briefing, he also claims his sentence violates the recent Supreme Court holding in

United States v. Booker, - - U.S. - -, 125 S.Ct. 738 (2005). Exercising jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM.

I.    Background

      The events leading to Abeyta’s arrest are not contested. On the evening of

March 14, 2003, while driving with two friends, Abeyta’s truck broke down on

the side of a Wyoming highway. The three men responded by removing two .22

caliber rifles from the bed of the truck and wrapping them in a tarp, then hitching

a ride to a convenience store to call for assistance. While neither Abeyta nor his

friends were acting in a threatening manner in the store, the police were

summoned because the weapons made people in the store nervous. When the

officers arrived and questioned one of Abeyta’s friends about the rifles, he

explained that their truck had broken down on the highway and the three

companions had brought the firearms with them because they did not want to

leave them in the back of the truck.

      An unremarkable investigation led to the discoveries that Abeyta was the

driver of the truck; he was driving under the influence of alcohol; his license was


                                         -2-
suspended; he did not have a valid registration; he was in possession of a small

amount of marijuana; and he was wearing a concealed .25 caliber semi-automatic

pistol. He was charged by Wyoming authorities for the foregoing offenses. Three

days later, he pled guilty and was sentenced to a total of 180 days in jail. 1

       On May 22, 2003, Abeyta was charged in a federal indictment with, inter

alia, being a felon in possession of firearms 2 based on his possession of the

firearms on March 14, 2003. He eventually pled guilty and a presentence

investigation report (PSR) was prepared. 3 In calculating Abeyta’s offense level,

the PSR found a base offense level of 14 and added two points for possession of

between three and seven firearms pursuant to USSG §2K2.1(b)(1)(A). His

criminal history category included two points for his convictions for the March

14, 2003, possession of marijuana and driving under the influence of alcohol

(DUI) offenses. The report also added two points pursuant to USSG §4A1.1(d)

because the March 14, 2003, arrest occurred while there was an outstanding

warrant from a prior sentence. The total sixteen point criminal history calculation

       1
          Abeyta was sentenced as follows: driving under the influence of alcohol (90 days
in jail); possession of marijuana (30 days in jail); carrying a concealed weapon (60 days in
jail); driving with a suspended license (6 months unsupervised probation); no valid
registration ($30.00 fine).

       Abeyta pleaded guilty in Utah to possession of a controlled substance, a third
       2

degree felony, in 1993.

       Abeyta was sentenced under the November 5, 2003 edition of the Sentencing
       3

Guidelines Manual.

                                            -3-
established a criminal history category of V. Based on a total offense level of 13 4

and a criminal history category of V, the guideline imprisonment range was thirty

to thirty-seven months.

      At the hearing, Abeyta lodged an objection to the inclusion of the

marijuana and DUI convictions in his criminal history calculation, claiming the

sentences were related to his sentence for carrying a concealed weapon and

therefore must be considered “relevant conduct” within the meaning of USSG

§1B1.3(a)(1), precluding their use in determining his criminal history category.

After further discussion, the district court deferred Abeyta’s sentencing to allow

the parties to brief the issue. Following the submission of the parties’ briefs, the

sentencing hearing recommenced on June 18, 2004. The district court overruled

Abeyta’s objections and sentenced him to thirty-three months imprisonment

followed by two years of supervised release. This timely appeal followed.

II. Standard of Review

      The district court’s legal interpretation of the sentencing guidelines is

reviewed de novo, while its factual findings are reviewed for clear error. United

States v. Keifer, 198 F.3d 798, 801 (10th Cir. 1999). Whether prior conduct

constitutes relevant conduct under USSG §1B1.3 is a question of fact for the




      Abeyta received a three point reduction for acceptance of responsibility. See
      4

USSG §3E1.1(a) & (b).

                                          -4-
district court’s determination. Id. So too, “[a] challenge to the district court's

determination of whether [] prior offenses were part of the instant offense is a

factual determination” reviewed for clear error. United States v. Torres, 182 F.3d

1156, 1159 (10th Cir. 1999).

        Abeyta challenges the district court’s decision to assess two criminal

history points against him based on the state court convictions for DUI and

marijuana possession. He agrees his concealed weapon charge is relevant conduct

under USSG §1B1.3. However, he argues that once the district court determined

the concealed weapon charge was relevant conduct to the instant offense, USSG

§4A1.2(a)(2) and application note 3 to that section foreclosed the use of his

related sentences for DUI and marijuana possession in his criminal history

calculation. We disagree.

III. Discussion

      A.     Prior Sentences

      In calculating a defendant's criminal history category under the guidelines,

points are added based upon prior sentences. “The term ‘prior sentence’ means

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.”

USSG §4A1.2(a)(1) (emphasis added). The commentary accompanying §4A1.2

provides that “[c]onduct that is part of the instant offense means conduct that is


                                          -5-
relevant conduct to the instant offense under the provisions of §1B1.3 (Relevant

Conduct).” USSG §4A1.2, comment. (n.1). Thus, by definition, a “prior

sentence” for the purposes of a criminal history calculation excludes a sentence

for conduct that is relevant conduct under §1B1.3.

      Under §4A1.2(a)(2), “[p]rior sentences imposed in unrelated cases are to be

counted separately. Prior sentences imposed in related cases are to be treated as

one sentence for purposes of §4A1.1(a), (b), and (c) [calculation of criminal

history category].” The guidelines consider prior sentences to be related “if they

resulted from offenses that (A) occurred on the same occasion, (B) were part of a

single common scheme or plan, or (C) were consolidated for trial or sentencing.”

USSG §4A1.2, comment. (n.3). Abeyta argues that his convictions for DUI,

marijuana possession and carrying a concealed weapon (as well as his uncounted

motor vehicle transgressions) occurred on the same occasion, were part of the

same activity and were consolidated for sentencing. Therefore, if the concealed

weapon charge is considered relevant conduct, then the remainder of his related

sentences become one sentence and must also be treated as relevant conduct and

may not be considered in determining his criminal history category.

      Abeyta argues that our analysis in Torres supports his position. In Torres,

we clarified how we review the district court’s determination whether a prior

sentence is based on conduct relevant to the instant offense:


                                         -6-
      [W]e must first examine whether the district court took the prior
      sentence into account in determining the base offense level. If the
      district court did take the prior sentence into account in calculating
      the offense level, then it is clear that to prevent double counting the
      court cannot use that same sentence in its criminal history
      calculation. However, in a case like this one, where the record
      shows that the court did not take the prior sentence into account for
      its base offense level calculation but instead used it for criminal
      history purposes, a second step of analysis is necessary. We also
      must review the court's underlying finding that the prior sentence was
      not part of the instant offense, i.e., that it was not relevant conduct.
      A correct determination of whether the prior sentence constituted
      relevant conduct is an essential predicate to the criminal history
      assessment.

182 F.3d at 1160 (citations omitted). Courts generally look to “the similarity,

temporal proximity, and regularity of the instant offense and the prior sentence”

when determining whether the prior sentence is based on conduct relevant to the

instant offense. Id. This includes an analysis of the nature and substance of the

offense(s) underlying the prior sentence as compared to the instant offense,

whether the prior offense was consolidated with the instant offense and whether

the government intended to present evidence of the prior conviction. Id.

      Applying Torres, we have no difficulty agreeing with the district court that

the conduct involved in the state concealed weapons charge is relevant conduct to

the offense of being a felon in possession of a firearm. The two offenses

occurred at the same time and the concealed weapon was considered as one of the

weapons included in the federal charge. We also agree that the marijuana

possession and the DUI have no similarity with the “nature and substance” of the


                                         -7-
instant offense. As the district court noted, these are “severable instances of

unlawful conduct.” United States v. Banashefski, 928 F.2d 349, 352 (10th Cir.

1991); 5 see also, United States v. Flores, 149 F.3d 1272, 1281 (10th Cir. 1998)

(state marijuana possession charge not relevant conduct to federal

methamphetamine conspiracy charge); Kiefer, 198 F.3d at 801-802 (state

conviction for fraudulently obtaining driver’s license not relevant conduct to

federal bank fraud conviction); United States v. Ladum, 141 F.3d 1328, 1347-48

(9th Cir. 1998) (local ordinance violation for operation of second-hand store not

relevant conduct to federal fraud and money laundering convictions); United

States v. Troncoso, 23 F.3d 612, 616-17 (1st Cir. 1994) (state court cocaine

distribution conviction not relevant conduct to federal immigration charge).

      As in the above cases, Abeyta’s convictions for DUI and marijuana



      5
        Contrary to Abeyta’s position, neither Torres nor any other Tenth Circuit case has
“implicitly overruled” our holding in Banashefski. In United States v. Ivy, 83 F.3d 1266,
1295 (10th Cir. 1996), we noted the 1993 amendment by the Sentencing Commission to
USSG §4A1.2, comment. (n.1), which added the following: “Conduct that is part of the
instant offense means conduct that is relevant conduct to the instant offense under the
provisions of §1B1.3 (Relevant Conduct).” USSG App. C, amend. 493. We also
recognized that “[t]he purpose of the amendment was to avoid double counting and
ensure consistency with other guideline provisions.” Id. (internal quotation marks
omitted). Prior to the amendment, our standard in Banashefski held that prior offenses
were part of the instant offense, if they were not “severable instances of unlawful
conduct.” 928 F.2d at 352. While the amendment placed that standard in a broader legal
context, as later defined by Torres, our reasoning in Banashefski is entirely compatible
with subsequent cases determining whether a state conviction is relevant conduct vis-a-
vis a federal conviction.

                                           -8-
possession were collaterally connected to his federal firearms charge only because

of the temporal proximity of their discovery. He astutely refrains from arguing

that the DUI and marijuana charge would independently be considered relevant

conduct in this case absent the existence of §4A1.2(a)(2). Indeed, his point is that

his sentences for the marijuana conviction and the DUI are subsumed within his

concealed weapon sentence by virtue of § 4A1.2(a)(2). Thus, in Abeyta’s view,

the district court improperly “unrelated” the concealed weapons sentence before

applying the sentences for DUI and marijuana possession. Or, as the first circuit

framed the issue before rejecting it in a similar case, “a court confronted with a

group of prior related sentences must designate them relevant or irrelevant

conduct as a group.” United States v. Cyr, 337 F.3d 96, 102 (1st Cir. 2003)

(separating relevant conduct from prior related cases).

      While Abeyta’s argument has superficial appeal, his logic is flawed. “We

interpret the Sentencing Guidelines according to accepted rules of statutory

construction. In interpreting a guideline, we look at the language in the guideline

itself, as well as at the interpretative and explanatory commentary to the guideline

provided by the Sentencing Commission.” United States v. Robertson, 350 F.3d

1109, 1112 (10th Cir. 2003), cert. denied, 541 U.S. 1052 (2004) (internal

quotations and citation omitted). Abeyta wishes us to begin with the guidelines

commentary in our analysis. However, we begin with the first section of the


                                         -9-
guideline itself. See USSG §4A1.2(a)(1). Under the plain language found

therein, his concealed weapon conviction is conduct that is part of the instant

offense, and therefore, by definition his sentence for that conviction is not a

“prior sentence.” If it is not a “prior sentence,” then it cannot be a “prior

sentence” imposed in a related case or a related “prior sentence.” See

§4A1.2(a)(2) and comment. (n.3).

      As we stated in Torres, “[a] correct determination of whether the prior

sentence constituted relevant conduct is an essential predicate to the criminal

history assessment.” 182 F.3d at 1160 (emphasis added). Again, in Keifer we

confirmed, “a conviction will not be treated as a prior sentence (and no criminal

history points can be added) so long as the underlying conduct meets the

definition of relevant conduct.” 198 F.3d at 801 (emphasis added).

      The district court’s approach was a straightforward application of the

guidelines. It determined that the sentence resulting from Abeyta’s conviction for

a charge constituting relevant conduct to the instant offense was not a “prior

sentence” for the purpose of calculating his criminal history category. Pursuant to

Torres, the court appropriately considered the concealed weapon charge in

determining Abeyta’s offense level. The next step was to determine whether the

remaining sentences should be considered “prior sentences.” It did so, and

concluded that the marijuana possession and DUI sentences did not include


                                         -10-
conduct “part of the instant offense.” USSG §4A1.2(a)(1). The court then

determined that these prior sentences were related 6 and, accordingly, it combined

their effect to impose two additional criminal history points. The district court

appropriately applied the sentencing guidelines to determine Abeyta’s criminal

history category.

      B.     Booker Claim

      On January 12, 2005, the Supreme Court issued its opinion in Booker.

After Booker was issued, Abeyta requested leave to file a supplemental brief in

support of his pending appeal. We granted his request and now address his claim

that his sentence violates the principles set forth in Booker because the district

court applied the sentencing guidelines in a mandatory fashion.

      In Booker, the Supreme Court held that the Sixth Amendment requires

“[a]ny fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea of

guilty or a jury verdict [to] be admitted by the defendant or proved to a jury

beyond a reasonable doubt.” 125 S.Ct. at 756. To remedy the constitutional

infirmity of the guidelines, Booker invalidated their mandatory nature, requiring

the district court to consult them as advisory. Id. at 756-57 (severing and



      6
       The Government concedes that the sentences for all but the concealed weapon
charge are prior sentences in related cases.

                                         -11-
excising 18 U.S.C. §§ 3553(b)(1), 3742(e)).

      Because Abeyta did not raise Booker before the district court, we review

for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727, 730 (10th Cir.

2005) (en banc). To establish plain error, he must demonstrate there is (1) error,

(2) that is plain and (3) the error affects his substantial rights. United States v.

Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005); Gonzalez-Huerta, 403 F.3d at 732.

If these three prongs are met, we may exercise our discretion to correct the error

if Abeyta establishes “the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings,” i.e. the fourth prong of plain error review.

Dazey, 403 F.3d at 1174. See Gonzalez-Huerta, 403 F.3d at 736.

      The first two prongs of the plain error standard have been met—there was

error and the error was plain. Gonzalez-Huerta, 403 F.3d at 732. However,

contrary to Abeyta’s arguments, the error was not a structural error. Id. at 734. It

is a “non-constitutional Booker error” because no judicial fact-finding occurred at

sentencing but the district court applied the guidelines in a mandatory rather than

advisory fashion. Id. at 731-32. Abeyta does not claim the district court engaged

in fact-finding. Therefore, his sentence was based solely on his admissions and

no Sixth Amendment violation occurred.

      We need not decide whether Abeyta has satisfied the third prong of the

plain error standard because, even if he has, he has not met the fourth prong. See


                                          -12-
id. at 736 (concluding it was unnecessary to determine whether the third prong of

the plain error test was met because the fourth prong must also be satisfied to

obtain relief and the fourth prong was not met).

      If “non-constitutional Booker error” is involved, as in this case, the

standard for satisfying the fourth prong of the plain error test is

“demanding”—the defendant must show that the error is “particularly egregious”

and that our failure to notice it would result in a “miscarriage of justice.” Dazey,

403 F.3d at 1178 (internal quotations omitted); Gonzalez-Huerta, 403 F.3d at 736-

37 (internal quotations omitted). We have recognized that in most cases

involving “non-constitutional Booker error” the defendant will be unable to

satisfy the fourth prong. See Trujillo-Terrazas, 405 F.3d 814, 820-21 (10th Cir.

2005) (recognizing the difficulty in establishing the fourth prong in cases

involving “non-constitutional Booker error” but finding that defendant had

satisfied the fourth prong). Like the majority of others, Abeyta has not met this

demanding standard.

      Abeyta received a sentence within the national norm as established by the

guidelines. See Gonzalez-Huerta, 403 F.3d at 738-39 (considering in fourth

prong analysis whether the defendant received a sentence within the

guidelines/national norm and the record supported a lower sentence). There is

nothing in the record to indicate the court was unhappy with Abeyta’s sentence or


                                          -13-
that it would have been inclined to impose a lower sentence or probation had it

realized it enjoyed the discretion to do so. Based on the above, Abeyta fails to

satisfy the fourth prong of plain error review. Accordingly, we decline to

exercise our discretion to correct the Booker error.

IV.    Conclusion

       For the above-stated reasons, we AFFIRM the sentence imposed by the

district court.



                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




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