Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1990)

MEMORANDUM

Felix-Mungarro timely appeals his sentence imposed under the United States Sentencing Guidelines. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(a). We affirm.

The government contends that Felix-Mungarro waived his right to appeal as part of the plea agreement. Felix-Mungarro contends, however, that he preserved his right to appeal any sentence imposed under the Guidelines, waiving only his right to appeal a departure from them. Because the district court did not depart, Felix-Mungarro contends he did not waive his right to this appeal. The plea agreement was oral, and while it was memorialized on the record, the record is ambiguous on this point. We therefore reach the merits.

If a defendant is convicted under 18 U.S.C. § 111 and the sentencing court finds he used a dangerous weapon with intent to do bodily harm, the base offense level is 15. United States Sentencing Commission, Guidelines Manual, Sec. 2A2.2 & comment. (n. 1) (Nov. 1990). Three points must be added to the base level if the defendant brandished or threatened to use the dangerous weapon. Id. Sec. 2A2.2(b) (2) (C). Felix-Mungarro pleaded guilty to 18 U.S.C. § 111. The district court found he had intended to do bodily harm and threatened the use of a dangerous weapon by driving his truck at a border patrol agent. The district court therefore computed an adjusted offense level of 18.

Felix-Mungarro contends it was clear error for the district court to make these factual findings. He attempts to impeach the district court's findings with materials not presented to the district court: reports prepared by a private investigator and police detective. We do not consider these materials. "Pursuant to Federal Rule of Appellate Procedure 10(a), exhibits and papers not filed with the district court or admitted into evidence are not part of the appellate record." United States v. Sanchez-Lopez, 879 F.2d 541, 548 (9th Cir. 1989).

Felix-Mungarro also claims clear error by contending that since he missed the border patrol agent, his intentions were ambiguous. We rejected a similar contention in United States v. Sanchez, 914 F.2d 1355 (9th Cir. 1990). We likewise affirm the district court's factual findings in this case as not clearly erroneous.

Next, Felix-Mungarro contends the addition of the 3 points is "double counting." As already described, these points are expressly prescribed by the Guidelines.

Felix-Mungarro next contends that sentencing pursuant to section 2A2.2 would violate the "spirit and intention of the plea agreement." Felix-Mungarro apparently contends that by entering this agreement, the government implicitly agreed on behalf of the court to apply Guidelines section 2A2.4 (Obstructing or Impeding Officers), instead of section 2A2.2 (Aggravated Assault). We hold Felix-Mungarro to the express terms of his agreement and affirm the district court's use of the applicable Guidelines section.

Finally, Felix-Mungarro contends the district court incorrectly computed his criminal history score. The district court gave Felix-Mungarro 3 criminal history points for his 6 prior convictions and 2 criminal history points for committing his assault while on probation. Felix-Mungarro challenges only the latter 2 points.

Two criminal history points must be given for the commission of an offense "while under any criminal justice sentence, including probation ... or escape status." U.S.S.G. Sec. 4A1.1(d). On September 7, 1987, Felix-Mungarro pleaded guilty to drunk driving and was placed on 3 years' probation. But on January 12, 1988, probation was revoked and a warrant issued for his arrest. He committed the present offense on May 3, 1990, within the initial 3-year period.

Felix-Mungarro contends that since his probation was revoked prior to his commission of the present offense, 2 points cannot be levied for his probation. He fails to observe, though, that these points must be imposed if the offense is committed "while under any criminal justice sentence, including probation ... or escape status." U.S.S.G. Sec. 4A1.1(d) (emphasis added). Felix-Mungarro was not on probation only because he failed to comply with its terms, so the 2 points were properly added to his criminal history score. We affirm the district court's computation of this score.

AFFIRMED.