03-2013 U.S. v. Reyes

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“On appeal Reyes challenges the district court’s conclusion that he had more than one criminal history point. He submits for the first time that-apart from the one criminal history point assigned for the battery conviction-the district court’s decision to assign a criminal history point to a state driving violation for which he received only one year of supervision violated U.S.S.G. § 4A1.2(c)(1), the provision that defines how prior sentences are to be counted for purposes of computing criminal history. Reyes argues that § 4A1.2(c)(1) excludes from such computations the offense of driving without a license or with a revoked or suspended license. Though § 4A1.2(c)(1) directs that a conviction for such an offense be counted if it resulted in a ‘term of probation of at least one year,’ Reyes contends that the term of supervision he received was not a sentence of probation.

“Reyes waived the argument, however, by failing to challenge at sentencing the imposition of a criminal history point for the state driving violation. At sentencing Reyes objected to the criminal history point he received for the battery conviction; he similarly could have objected to the criminal history point he received for the driving violation but chose not to do so. See United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000) (holding that defendant waived his right to appeal where he knew he had the right to object and affirmatively decided not to object). And since ‘[w]aiver extinguishes any error and precludes appellate review,’ United States v. Jacques, 345 F.3d 960, 962 (7th Cir. 2003), Reyes cannot on appeal challenge the district court’s decision to impose a criminal history point for the driving violation. Since Reyes must meet all of the criteria under U.S.S.G. § 5C1.2(1)-(5) to be eligible for sentencing under the safety valve provision, United States v. Bonsu, 336 F.3d 582, 586 (7th Cir. 2003), his inability to challenge his second criminal history point effectively dooms his eligibility and, by extension, his appeal.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Per Curiam.