     Case: 19-40561      Document: 00515356594         Page: 1    Date Filed: 03/24/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                          United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                       March 24, 2020
                                    No. 19-40561                       Lyle W. Cayce
                                  Summary Calendar                          Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROQUE CRUZ-FLORES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:18-CR-1041-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Roque Cruz-Flores was convicted of unlawful presence in the United
States after a previous deportation and was sentenced to 37 months of
imprisonment. He appeals his sentence on two grounds, which we address
below. We AFFIRM.
       First, relying on this court’s decision in United States v. Carlile, 884 F.3d
554 (5th Cir. 2018), Cruz-Flores argues that his 2013 assault conviction should


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5 TH
CIR. R. 47.5.4.
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                                 No. 19-40561

have received only one criminal history point under U.S.S.G. § 4A1.1(c)
because the time he served for that crime actually was for a 2012 illegal reentry
conviction.
      Cruz-Flores’s sentence for his assault conviction was 60 days in custody
with credit for 10 days of time served. Cruz-Flores contends that the 10 days
of time served were part of his 127-day sentence for a separate illegal reentry
conviction. However, the record demonstrates that Cruz-Flores had already
satisfied his sentence for illegal reentry when the 10 days of time served began.
Cruz-Flores was actually given credit for 10 days he served pending sentencing
for his assault conviction. Therefore, Carlile is inapposite. 884 F.3d at 557
(“Because the state court elected to give [the defendant] credit for time served
from [another] sentence, [the defendant] did not spend any time in custody [for
this offense].”). Because the sentence of imprisonment for Cruz-Flores’s assault
conviction was at least 60 days and Cruz-Flores actually served at least a
portion of that sentence, the district court correctly assigned two criminal
history points. See § 4A1.1(b); U.S.S.G. § 4A1.2(b)(1); § 4A1.2, comment. (n.2).
      Cruz-Flores also asserts that the district court erroneously considered
Application Note 3 of U.S.S.G. § 2L1.2, which states that if a defendant receives
offense level enhancements for prior convictions under § 2L1.2(b), those same
prior convictions may garner criminal history points under U.S.S.G. § 4A1.1.
Cruz-Flores argues that, pursuant the Supreme Court’s decision in Kisor v.
Wilkie, 139 S. Ct. 2400 (2019), the district court should have afforded no
deference to the commentary because the language of § 2L1.2 is unambiguous.
Additionally, he avers that because § 2L1.2 specifically addresses illegal
reentry offenses, the district court should not have applied criminal history
points pursuant to § 4A1.1 for offenses that resulted in offense level
enhancements under § 2L1.2(b).



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                                  No. 19-40561

      As Cruz-Flores concedes, we review for plain error. To prevail on plain
error review, Cruz-Flores must show a forfeited error that is clear or obvious
and that affects his substantial rights. Puckett v. United States, 556 U.S. 129,
135 (2009). If Cruz-Flores makes such a showing, this court has the discretion
to correct the error but only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (alteration in original) (internal
quotation marks and citation omitted).
      Kisor addressed the continuing viability of the deference afforded to an
agency’s interpretations of its own regulations pursuant to Auer v. Robbins,
519 U.S. 452 (1997). The Court in Kisor did not overrule Auer deference but
merely restated the limitations on applying deference to interpretations by an
agency. Kisor, 139 S. Ct. at 2415–16, 2423. Kisor did not discuss the Sentencing
Guidelines or the case law holding that the commentary to the Guidelines is
authoritative unless it violates federal law or the Constitution, it is
inconsistent with the Guideline being interpreted, or it constitutes a plainly
erroneous reading of the Guideline. See Stinson v. United States, 508 U.S. 36,
38 (1993). Because there is currently no case law from the Supreme Court or
this court addressing the effect of Kisor on the Sentencing Guidelines in
general or on Application Note 3 of § 2L1.2 in particular, we conclude that
there is no clear or obvious error. See United States v. Escalante-Reyes, 689
F.3d 415, 418 (5th Cir. 2012) (en banc); United States v. Gonzalez, 792 F.3d
534, 538 (5th Cir. 2015); see also United States v. Vivar-Lopez, 788 F. App’x
300, 301 (2019) (holding the same).
      AFFIRMED.




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