Case: 19-50987 Document: 00515660126 Page: 1 Date Filed: 12/03/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 19-50987 December 3, 2020 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Roel Gilberto Melendez-Davila, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 3:19-CR-01780 Before Clement, Ho, and Duncan, Circuit Judges. Per Curiam:* Roel Gilberto Melendez-Davila pleaded guilty to illegal reentry under 8 U.S.C. § 1326(a). At sentencing, the district court imposed a four-level enhancement under U.S.S.G. § 2L.1.2(b)(3)(D), which applies if the defendant committed a felony after his first removal. The district court relied on Melendez-Davila’s Kansas conviction for conspiracy to commit * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-50987 Document: 00515660126 Page: 2 Date Filed: 12/03/2020 No. 19-50987 aggravated escape from custody, for which he was sentenced to eight months’ imprisonment and twelve months’ probation. See Kan. Stat. Ann. §§ 21-5911(b)(1)(A), 21-5302. Melendez-Davila did not object to this enhancement. After assessing other enhancements that Melendez-Davila does not challenge on this appeal, the district court imposed a sentence of forty-six months, at the lower end of the guideline range of forty-six to fifty- seven months. Melendez-Davila makes two arguments, both raised for the first time on appeal. First, he argues that 8 U.S.C. § 1326(a) is unconstitutional. He correctly concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but he presents the issue to preserve it for further possible review. Second, he argues that the district court plainly erred in assessing an enhancement for a felony conviction because his previous Kansas conviction was not punishable by more than one year in prison. Finding no plain error, we affirm. We review challenges to Guidelines enhancements raised for the first time on appeal for plain error. See United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). To rise to the level of plain error, a “legal error must be clear or obvious, rather than subject to reasonable debate.” Puckett v. United States, 556 U.S. 129, 135 (2009). Accordingly, “[t]here is no plain error if the legal landscape at the time showed the issue was disputed, even if . . . the district court turns out to have been wrong.” United States v. Rodriguez-Parra, 581 F.3d 227, 230 (5th Cir. 2009). “We ordinarily do not find plain error when we have not previously addressed an issue.” United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009) (quoting United States v. Lomas, 304 F. App’x 300, 301 (5th Cir. 2008)). The Guidelines define a “felony” as “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” 2 Case: 19-50987 Document: 00515660126 Page: 3 Date Filed: 12/03/2020 No. 19-50987 U.S.S.G. § 2L1.2 cmt. 2. ...
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