United States v. Antonio Ayala-Nunez

Case: 16-11542 Document: 00514254416 Page: 1 Date Filed: 11/29/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-11542 FILED November 29, 2017 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff–Appellee, v. ANTONIO AYALA–NUNEZ, also known as Antonio Nunez Ayala, also known as Antonio Munez Ayala, Defendant–Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 3:16-CR-113-1 Before CLEMENT, PRADO, and HAYNES, Circuit Judges. PER CURIAM:* Defendant–Appellant Antonio Ayala–Nunez argues that the district court plainly erred in sentencing him to 60 months’ imprisonment. Ayala– Nunez makes two arguments on appeal. First, he asserts that the district court plainly erred in applying a 12-level sentence enhancement under Sentencing Guidelines § 2L1.2. 1 Second, he argues that the district court plainly erred in * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 1U.S. Sentencing Guidelines Manual § 2L1.2 (U.S. Sentencing Comm’n 2015). This case involves issues relating to the 2015 version of the Sentencing Guidelines. Nothing in Case: 16-11542 Document: 00514254416 Page: 2 Date Filed: 11/29/2017 No. 16-11542 finding that he had previously committed an “aggravated felony.” He argues that each error independently justifies that this court vacate his sentence. I. FACTUAL AND PROCEDURAL BACKGROUND Antonio Ayala–Nunez was born in Mexico and came to the United States at a young age. In June 2016, Ayala–Nunez pleaded guilty without a plea agreement to one count of illegally re-entering the country following his removal, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). This was not Ayala–Nunez’s first interaction with the criminal justice system. 2 In July 2013, he was indicted for delivering a controlled substance in violation of Texas Health and Safety Code § 481.112(c) (“Delivery Offense”). Ayala–Nunez pleaded guilty, and he was sentenced to 24 months’ deferred adjudication probation. Ayala–Nunez was placed into United States Immigration and Customs Enforcement (“ICE”) administrative custody in October 2013. Following removal proceedings, an immigration judge ordered that Ayala–Nunez be removed to Mexico. He was removed in November 2013. In January 2014, United States Customs and Border Patrol (“CBP”) agents encountered Ayala–Nunez in Texas. He pleaded guilty to the offense of illegal entry and was sentenced to 90 days’ imprisonment. He was subsequently removed to Mexico in April 2014. In January 2015, Dallas police arrested Ayala–Nunez and charged him in Texas state court with simple cocaine possession. Ayala–Nunez was convicted and sentenced to 2 years’ imprisonment. this opinion relating to the 2015 Guidelines should be construed to apply to subsequent versions of the Guidelines. 2 In 2002, Ayala–Nunez was convicted for driving while intoxicated. He was convicted in 2005 for misdemeanor assault causing bodily injury to a family member. He was convicted in 2010 for misdemeanor assault causing bodily injury against a different family member. In 2013, he was arrested and later convicted for simple ...

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