Bernal-Portillo

MEMORANDUM *

Noe Bernal-Portillo is a native and citizen of Mexico and received a sentence of 70 months for illegally re-entering the United States after having been deported. He appeals the district court’s calculation of his sentence under the United States Sentencing Guidelines. We conclude that the district court was correct to assess 12 criminal history points-placing Bernal-Portillo in criminal history category V.

Bernal-Portillo first challenges the two points assessed under section 4A1.1(d). That section provides that two criminal history points will be added “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” U.S.S.G. § 4A1.1(d) (2000). Bernal-Portillo argues that he could not have been under a criminal justice sentence because the plain meaning of section 4A1.(d) requires that he be under some sort of supervision to be considered “under any criminal justice sentence” within the meaning of the Guidelines.

Bernal-Portillo’s “plain language” argument fails on the basis of the last example provided in section 4A1.1(d): escape status. Id.…