Case: 19-40036 Document: 00515103700 Page: 1 Date Filed: 09/04/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 19-40036 FILED Summary Calendar September 4, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. NESTOR FABIAN GONZALEZ-QUINTANILLA, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:18-CR-631-1 Before BARKSDALE, HAYNES, and WILLETT, Circuit Judges. PER CURIAM: * Nestor Fabian Gonzalez-Quintanilla challenges the 30-month sentence imposed following his guilty-plea conviction for being unlawfully present in the United States after deportation, in violation of 8 U.S.C. § 1326(a). Gonzalez claims the district court committed reversible plain error in its assessment of criminal-history points based on his state-law conviction, increasing his advisory Sentencing Guidelines range. * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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: 19-40036 Document: 00515103700 Page: 2 Date Filed: 09/04/2019 No. 19-40036 Gonzalez and two other men entered the United States on 18 April 2018. Two of the three carried bundles of marihuana during the crossing. This activity was observed by Customs and Border Patrol Agents. Later that day, Gonzalez was arrested by officers of a local drug task force and charged with felony possession of marihuana, in violation of Texas law. He was convicted of this offense and sentenced in Texas state court. Following that conviction, he was transferred into the custody of Immigration and Customs Enforcement officials pending prosecution under 8 U.S.C. § 1326(a). Gonzalez pleaded guilty. The presentence investigation report (PSR) assigned Gonzalez two criminal-history points for the state marihuana-possession conviction and sentence after a prior removal from the United States. In addition, the PSR assessed a four-level enhancement to Gonzalez’ base offense level under Guideline § 2L1.2(b)(3)(D) based on that conviction. Gonzalez did not object to either the assignment of criminal-history points or the enhancement. The district court sentenced Gonzalez, inter alia, to 30-months’ imprisonment. Gonzalez asserts the court committed reversible plain error in assessing two criminal-history points for his state marihuana conviction because that offense was committed simultaneously with the instant offense. He asserts, therefore, that the state marihuana offense constitutes relevant conduct under Guideline § 1B1.3, rather than a prior sentence under Guideline § 4A1.2(a)(1). He further contends that, because the state marihuana offense did not qualify for criminal-history points, the court erred in enhancing his base offense level. Because Gonzalez did not raise these issues in district court, review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Gonzalez must show a forfeited plain (clear or obvious) error that affected his substantial rights. Puckett v. United States, 2 Case: 19-40036 Document: 00515103700 Page: 3 Date Filed: 09/04/2019 No. 19-40036 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the ...
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