United States vs. Carlos Alfonso Moreno On July 12, 2004, Carlos Alfonso Moreno appeared before the United States Court of Appeals, Tenth Circuit. He brought before the court an appeal challenging the district court's calculation of his sentencing under the United States Sentencing Guideline. The panel determined after reviewing his case that an oral argument would not be necessary. They were able to look at the details of his case and make their decision. Mr.

Moreno was charged in district court with various drug offenses and with being a felon in possession of a firearm. He entered a guilty plea to possession with intent to distribute more than fifty grams of a substance containing a detectable amount of methamphetamine and possession of a firearm by a prohibited person In the pre-sentence report recommending Mr. Moreno's sentence, the Probation Officer added a point to his criminal history score as a result of September 2001 convictions for driving with a suspended license and for unsafe turning or stopping. For this earlier offense, Mr. Moreno was sentenced to six months in jail, with all but five days suspended, and six months of probation.

The Probation Officer justified the addition of this point by citing the sentencing guidelines, which direct that sentences for less than sixty days should be given one point. The Probation Officer then determined that Mr. Moreno's criminal history points totaled ten, placing him at the bottom of criminal history category. The district court agreed with this result and calculated Mr. Moreno's total adjusted offense level to be twenty-five. The court subsequently sentenced Mr.

Moreno to 100 months in prison, which is at the bottom of the 100 to 125 month range for an offense level twenty-five and criminal history category 5. On appeal, Mr. Moreno asserts the district court erred by adding a point to his criminal history for the earlier sentence. Absent the additional point, Mr.

Moreno would have been in a lower criminal history category and hence could have been subjected to a shorter sentence. However, because Mr. Moreno failed to raise an objection before the district court regarding the additional point for the September 2001 sentence, his sentencing stood. Application of the wrong sentencing guideline range constitutes plain error. Pursuant to the guidelines, certain sentences for misdemeanors and petty offenses are not counted in calculating a defendant's criminal history. Mr.

Moreno's conviction of driving with a suspended license is to be counted only if the sentence was a term of probation for at least one year or the prior offense was similar to the currant offense. Mr. Moreno's probation was only set for six months. The court reversed the decision and remanded for re-sentencing..