United States v. Jorge Matias-Sanchez

Case: 16-51462 Document: 00514293184 Page: 1 Date Filed: 01/03/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 16-51462 Fifth Circuit FILED January 3, 2018 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff - Appellee v. JORGE MATIAS-SANCHEZ, Defendant - Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:15-CR-1257-1 Before DAVIS, HAYNES and COSTA, Circuit Judges. PER CURIAM:* Jorge Matias-Sanchez appeals the district court’s assessment of two criminal history points based on a sentence initially imposed more than ten years before he commenced the instant offense. For the reasons explained below, we AFFIRM. I. Background On September 18, 2015, United States Border Patrol agents encountered Matias-Sanchez near Uvalde, Texas. He admitted that he was a Mexican * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 16-51462 Document: 00514293184 Page: 2 Date Filed: 01/03/2018 No. 16-51462 citizen without authority to be in the United States, having been removed by immigration authorities on January 4, 2013. He was indicted for illegal reentry after removal in violation of 8 U.S.C. § 1326(a), (b)(1), and (b)(2). He pleaded guilty to the charges. A presentence report (“PSR”) was prepared using the 2015 United States Sentencing Guidelines (“U.S.S.G.”). The PSR recommended a base offense level of 21 under U.S.S.G. § 2L1.2 and assigned a criminal history category VI, which yielded a Guidelines range of 77 to 96 months. At sentencing, the district court used the 2016 United States Sentencing Guidelines, which calculated a Guidelines range of 51 to 63 months. Included in calculating Matias-Sanchez’s criminal history points was a Deferred Entry of Judgment (“DEJ”) entered on August 30, 2005, in the Superior Court of Orange County in Santa Ana, California, after a guilty plea to felony possession of methamphetamine. The DEJ was terminated on September 29, 2005, after Matias-Sanchez did not appear at a hearing. Following the expiration of his probation on a separate count, Matias-Sanchez was sentenced to 90 days imprisonment on September 4, 2008. The PSR assessed two criminal history points for this conviction under U.S.S.G. § 4A1.1(b). Without those two points, Matias-Sanchez’s criminal history category would have been V and his Guidelines range would have been 46-57 months. Matias-Sanchez did not object to counting that sentence toward his criminal history points at the time of sentencing. He argues for the first time on appeal that assessing the two criminal history points was in error. II. Standard of Review An argument raised for the first time on appeal is reviewed under the plain-error standard. United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011). To prevail on plain error review, an appellant must show (1) “an error or defect,” (2) that is “clear or obvious, rather than subject to reasonable 2 Case: 16-51462 Document: 00514293184 Page: 3 Date Filed: 01/03/2018 ...

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