IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 98-41136 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL ANGEL MOTA-AGUIRRE,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas _________________________________________________________________

August 17, 1999

Before JOLLY and SMITH, Circuit Judges, and TOM STAGG,* District Judge.

E. GRADY JOLLY, Circuit Judge:

The appellant, Miguel Angel Mota-Aguirre, was sentenced to 87

months of imprisonment for one count of illegal reentry into the

United States after deportation in violation of

(a)

and (b)(2). He only appeals his sentence. Previously, on

October 31, 1983, Mota was issued an “Out-of-Country Conditional

Pardon” by the governor of Texas after being convicted in Texas

state district court of three separate counts of indecency with a

child. Mota violated the conditions of this pardon by illegally

reentering the United States. On appeal, Mota challenges the

* District Judge of the Western District of Louisiana, sitting by designation. district court’s calculation of his criminal history score under §§

4A1.1(d) and 4A1.2(a)(2) of the United States Sentencing

Guidelines. Mota contends that the district court erred in

concluding that his conditional pardon constituted a criminal

justice sentence under U.S.S.G. § 4A1.1(d). Next, Mota argues that

his convictions for indecency with a child are “related” for the

purposes of U.S.S.G. § 4A1.2(a)(2) and, therefore, the district

court erred in adding six points to his criminal history score. We

disagree. The terms of Mota’s conditional pardon and Texas law

both make clear that his pardon is best analogized to parole, which

is listed as a criminal justice sentence under the guideline.

Additionally, under United States v. Garcia,

(5th Cir.

1992), Mota’s characterization of his indecency convictions as

“related” is meritless. Consequently, we affirm Mota’s sentence in

all respects.

2 I

A

Miguel Angel Mota-Aguirre is a Mexican national. On

September 18, 1980, he was arrested and charged with two separate

counts of indecency with a child in Jefferson County, Texas. Mota

committed the offenses on September 25, 1979, and September 15,

1980. He pled no contest to the charges on April 28, 1981, and on

May 15, 1981, the Texas state district court sentenced him to

deferred adjudication on each offense. The Texas state district

court revoked Mota’s probation on October 22, 1981, when he

committed a third child indecency offense. Consequently, on

January 15, 1982, Mota was sentenced to eight years of imprisonment

on each of the three indecency convictions and was incarcerated at

the Texas Department of Corrections. Each of Mota’s sentences was

to run concurrently.

Next, on October 31, 1983, the governor of Texas issued Mota

an “Out-of-Country Conditional Pardon,” whereby he was released

from prison into the custody of the Immigration and Naturalization

Service,(“INS”), for immediate deportation. In accordance with the

terms of the pardon, Mota was deported to the Republic of Mexico on

December 17, 1983. The conditional pardon further provided that if

Mota returned to the United States illegally at any time, his

pardon would be revoked and he would be returned to the Texas

Department of Corrections. Notwithstanding the largesse, and the

3 threat, of the governor, Mota’s absence from this country proved to

be short-lived.

On July 25, 1997, the Jefferson County sheriff’s office

notified the INS that Mota, suspected of being an illegal alien,

was being held in the Jefferson County jail in Beaumont, Texas.

During a jailhouse interview with the INS, Mota admitted that he

had illegally reentered the United States in June 1984,

approximately six months after his conditional pardon.

B

On February 11, 1998, Mota was indicted on one count of

illegal reentry into the United States after deportation under

(a) and (b)(2).1 Mota pled guilty to the charge on

June 8, 1998, and on September 11, 1998, he was sentenced to 87

months of imprisonment followed by three years of supervised

release. In calculating Mota’s sentence, the district court added

a two-point increase to Mota’s criminal history score under

U.S.S.G. § 4A1.1(d), because he was under a criminal justice

sentence at the time of his offense; that is, when Mota illegally

reentered the United States his conditional pardon was subject to

revocation. Furthermore, the district court treated two of Mota’s

convictions for indecency with a child as unrelated offenses under

U.S.S.G. § 4A1.2(a)(2) and, in doing so, assigned him six criminal

1 Mota’s conditional pardon was revoked on April 2, 1998.

4 history points under the guideline. Mota has timely appealed the

sentence.

II

A

On appeal, Mota argues that the district court erred in

increasing his criminal history score by two under U.S.S.G.

§ 4A1.1(d) because he was not under a criminal justice sentence

when he illegally reentered the United States. Specifically, Mota

contends that at the time of the offense, he had been granted a

conditional pardon, which contained no probation nor supervised

release requirement. Mota therefore maintains that his conditional

pardon does not qualify as a criminal justice sentence for the

purposes of the guideline.

U.S.S.G. § 4A1.1(d) instructs that the sentencing court “add

2 points if the defendant committed the instant offense while under

any criminal justice sentence, including probation, parole,

supervised release, imprisonment, work release, or escape status.”

The term "criminal justice sentence" is defined in the commentary

to the guideline as "a sentence . . . having a custodial or

supervisory component, although active supervision is not required

for this item to apply." U.S.S.G. § 4A1.1(d), comment. (n.4).

Neither the plain language of the criminal history guideline

nor its commentary, however, addresses the issue of first

impression presented by this appeal--whether under U.S.S.G.

§ 4A1.1(d) a conditional pardon constitutes a criminal justice

5 sentence. We agree with the district court that for the purposes

of calculating Mota’s criminal history score, his conditional

pardon was the functional equivalent of parole. Indeed, under

Texas law, parole is generally classified as a conditional pardon.

Ex parte Lefors,

(Tex. Crim. App. 1957)

(citations omitted). See also Clifford v. Beto,

(5th Cir. 1972) (citations omitted) (noting same). This is so

because parole and conditional pardons bear almost identical

characteristics. For example, while the conditional pardon exempts

a defendant from punishment, parole conditionally releases a

defendant from further punishment. Lefors,

.

Furthermore, although Mota received a pardon from his convictions,

like parole, his sentence remained in effect while he was granted

liberty from confinement–-but so long as he abided by the specified

restrictions contained in his pardon. Cf.

We are therefore

satisfied that for the purposes of U.S.S.G. § 4A1.1(d), there

exists no significant difference between parole and a conditional

pardon.

Finally, we find no merit in Mota’s position that his

conditional pardon contained no supervisory requirement. Although

Mota’s conditional pardon did not require active supervision, his

pardon included a supervisory component in that the governor

retained the power to revoke Mota’s pardon upon a breach of its

conditions and to remand the alien defendant to the custody of the

Texas Department of Corrections. We are satisfied that this kind

6 of supervisory component is sufficient to bring Mota’s conditional

pardon within the purview of U.S.S.G. § 4A1.1(d). See United

States v. Labella-Szuba,

(2d Cir.), cert. denied,

(1996) (holding the sentencing court’s authority to

revoke the defendant’s conditional discharge constituted sufficient

supervision within the meaning of “criminal justice sentence” under

the guideline). In any event, Texas law makes certain that Mota’s

conditional pardon contained some aspect of supervision. See

(b)(“A parole officer or supervisor, on the

request of the governor . . . shall be responsible for supervising

an inmate placed on conditional pardon . . . .”).

In sum, we conclude that the district court properly

classified Mota’s conditional pardon as a criminal justice sentence

under the criminal history guideline, U.S.S.G. § 4A1.1(d).

III

Mota’s second argument is that the district court erred in

treating his two prior convictions for indecency with a child as

“unrelated” when calculating his criminal history score under

U.S.S.G. § 4A1.2(a)(2).

U.S.S.G. § 4A1.2(a)(2) provides that “prior sentences imposed

in unrelated cases are to be counted separately. Prior sentences

imposed in related cases are to be treated as one sentence for the

purposes of [assigning criminal history points under] § 4A1.1(a),

(b), and (c).” Under the guideline, "prior sentences are

considered related if they resulted from offenses that: (1)

7 occurred on the same occasion; (2) were part of a single common

scheme or plan; or (3) were consolidated for trial or sentencing."

U.S.S.G. § 4A1.2, comment. (n.3).

We are satisfied that none of these categories are applicable

to the instant appeal. Indeed, Mota’s objection to the district

court’s application of U.S.S.G. § 4A1.2(a)(2) is foreclosed by

United States v. Garcia,

(5th Cir. 1992). In Garcia,

, we held that although the facts surrounding the

cases may be similar, similar crimes are not necessarily related

crimes. (Citations and internal quotations omitted). Thus, to

prevail on his relatedness argument, Mota must show more than a

mere factual relationship between the child indecency crimes.

This he has not done. We therefore reject Mota’s argument that

both of his state court convictions were part of a common scheme or

plan. Not only did each of the indecency offenses involve two

different victims, but contrary to Mota’s argument on appeal, the

crimes also occurred approximately one year apart. The record

makes clear that Mota first exposed himself to a child on

September 25, 1979, and that he committed the offense a second time

on September 15, 1980. The similarity in the crimes, however, does

nothing to advance Mota’s argument on appeal. The fact that the

defendant repetitiously commits the same offense, in and of itself,

is insufficient to establish a common scheme for the purposes of

U.S.S.G. § 4A1.2(a)(2). See United States v. Ford,

, 86

8 (5th Cir.), cert. denied,

(1994); Garcia,

.

We similarly find no support for Mota’s consolidation

argument. We have previously rejected the proposition that cases

must be considered consolidated simply because two convictions have

concurrent sentences. Garcia,

(citations and

internal quotations omitted). Likewise, the “‘sentencing [of] two

distinct cases on the same day [does not] necessitate[] a finding

that they are consolidated.’”

(citing United States v.

Metcalf,

(5th Cir. 1990)). As a matter of fact,

nothing in the record can be read to suggest that Mota’s state

court cases for indecency with a child were consolidated: Each of

the cases was assigned a separate docket number. The state of

Texas never moved the state district court under Tex. Penal Code

§ 3.02 to consolidate the two cases. Nor did the Texas state

district court enter an order of consolidation. We have previously

recognized that such factors belie the defendant’s contention that

his cases were consolidated for sentencing purposes. See United

States v. Huskey,

(5th Cir. 1998) (citing

cases, which rejected consolidation argument where defendant

sentenced under different docket numbers and there existed no order

of consolidation); Garcia,

(holding same).

Accordingly, the district court properly concluded that Mota’s

child indecency convictions were unrelated under U.S.S.G.

§ 4A1.2(a)(2).

9 We therefore find no error in the district court’s calculation

of Mota’s criminal history score under the sentencing guidelines.

We therefore AFFIRM the sentence imposed and the judgment entered

by the district court.

A F F I R M E D.

10