     Case: 18-41181         Document: 00514993716         Page: 1     Date Filed: 06/12/2019




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

                                         No. 18-41181                         FILED
                                                                          June 12, 2019
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

                 Plaintiff - Appellee

v.

JUAN DE LA CRUZ RECINOS-HERNANDEZ, also known as Juan
Hernandez-Recinos,

                 Defendant - Appellant




                     Appeal from the United States District Court
                          for the Southern District of Texas
                                USDC No. 7:18-CR-623


Before HAYNES, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Juan de la Cruz Recinos-Hernandez (“Recinos”) 1 appeals his sentence
imposed after pleading guilty to illegal reentry under 8 U.S.C. § 1326. Recinos
makes just one argument, which he recognizes is subject to plain error review.
Because we conclude that any potential error was not “clear” or “obvious,” we
AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1   Because his briefing refers to him only as “Recinos,” we will use that name.
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                                 No. 18-41181
      Recinos argues that the district court incorrectly calculated his
recommended sentence range under the United States Sentencing Guidelines
(“U.S.S.G.” or “Sentencing Guidelines”) because it considered one of Recinos’s
previous convictions to be a “felony.” The Sentencing Guidelines define a
felony to be “any federal, state, or local offense punishable by imprisonment for
a term exceeding one year.” U.S.S.G. § 2L1.2 cmt. n.2. Recinos had previously
been convicted in Washington state court of possessing a controlled substance,
which was a Class C felony punishable by up to five years in prison. See WASH.
REV. CODE ANN. §§ 9A.20.021, 69.50.4013. The district court in this case
considered that conviction to be a felony and applied a sentencing
enhancement that increased his federal guidelines range from ten to sixteen
months to eighteen to twenty-four months.
      The hitch, according to Recinos, is that his state court conviction was
subject to Washington’s mandatory sentencing guidelines. Under those state
guidelines, Recinos was eligible only for zero to six months of imprisonment.
Thus, he argues, his state conviction was not a felony because he was only
subject to six months of imprisonment, and the enhancement was incorrect.
      This argument is directly contrary to his attorney’s admission at the
sentencing hearing referencing the Washington conviction as a felony. The
Government argues that attorney’s statement amounted to waiver of this
argument.
      The Government’s waiver argument is a strong one, but even if we treat
the alleged error as merely forfeited (it clearly was not raised), at best,
Recinos’s argument must be evaluated under plain error review. See FED. R.
CRIM. P. 52(b). Even allowing for plain error review, Recinos has not shown
that any potential error was plain error. See United States v. Escalante-Reyes,
689 F.3d 415, 419 (5th Cir. 2012) (en banc). To rise to the level of plain error,


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a “legal error must be clear or obvious, rather than subject to reasonable
debate.” United States v. Ellis, 564 F.3d 370, 377–78 (5th Cir. 2009).
       Here, there is a reasonable debate over whether a “felony” in Washington
is measured by the offense’s statutory maximum or the recommended
guidelines range. We have no binding in-circuit authority resolving the issue.
We have previously concluded, in an unpublished decision, that Recinos’s exact
argument was not plain error. See United States v. Cruz-de Jesus, 663 F. App’x
296, 298–99 (5th Cir. 2016). 2 There, we relied on United States v. Rodriquez,
553 U.S. 377 (2008), to conclude that a district court did not plainly err by
using a Washington statute’s maximum sentence instead of the state
guidelines’ maximum sentence for felony categorization. See Cruz-de Jesus,
663 F. App’x at 299. In Rodriquez, the Supreme Court concluded that a federal
court applying a similarly worded sentencing provision should look to the state
statutory maximum, not “to the top sentence in a [state] guidelines range.”
United States v. Rodriquez, 553 U.S. 377, 390 (2008). It even dealt with a
Washington conviction, just as Recinos’s conviction and the conviction in Cruz-
de Jesus were. Id. at 380–81. Rodriquez thus provides a strong ground to
conclude that the district court did not err at all.
       Recinos argues that cases decided after Rodriquez—namely Moncrieffe
v. Holder, 569 U.S. 184 (2013), and Carachuri-Rosendo v. Holder, 560 U.S. 563
(2010)—undermine the reasoning in Rodriquez. Those cases, of course, were
dealing with the separate question of whether the state conviction would
qualify as a federal felony, not how to determine a maximum sentence under
state law for federal sentencing guidelines purposes. But even if those cases
arguably alter the trajectory, we still conclude any potential error was not


       2 “An unpublished opinion issued after January 1, 1996 is not controlling precedent,
but may be persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006)
(citing 5TH CIR. R. 47.5.4).
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plain. The Supreme Court has not retracted its statement that state felony
offenses are not felonies because they are limited by state guidelines provisions
nor has it overruled Rodriquez. We would thus, in the best case for Recinos,
have to extend those later cases to a new context; extension of precedent is not
plain error. See United States v. Lucas, 849 F.3d 638, 645 (5th Cir. 2017) (“An
error is not plain under current law if a defendant’s theory requires the
extension of precedent.” (internal quotation marks omitted) (quoting United
States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010))). We concluded in Cruz-de
Jesus that any error was not plain even though the appellant there also cited
Moncrieffe and Carachuri-Rosendoin its briefing. If it was not plain error then,
it is not plain error now, especially after Cruz-de Jesus re-emphasized the
reasoning in Rodriquez.
      Blakely v. Washington, 124 S. Ct. 2531 (2004) does not address the issue
presented here.      The question in Blakely arose in a direct appeal of a
Washington sentence and, thus, addressed what facts the defendant was
entitled to have a jury, rather than a judge, find in support of a sentence. Id.
at 2538. By contrast, here we have the issue of whether a federal judge, in
determining whether a state court conviction is a felony for purposes of federal
guidelines, should look to the statutory maximum or the state sentencing
guidelines in the particular case. While a good argument can be made for the
latter, an equally good argument can be made that the federal sentencing
guidelines reference the more uniform approach of looking at the state statute
of conviction, consistent with the categorical approach we apply. See, e.g.,
Taylor v. United States, 495 U.S. 575 (1990); United States v. Flores, 2019 U.S.
App. LEXIS 13059 **4-6 (5th Cir. Apr. 30, 2019).
      Recinos cites out-of-circuit cases that adopted his argument. See United
States v. Valencia-Mendoza, 912 F.3d 1215, 1223–24 & n.4 (9th Cir. 2019)
(adopting the argument and collecting relevant cases). None of these cases
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were decided under plain error review. Recinos also cites unpublished cases
from our circuit accepting concessions by the Government in cases involving
convictions from North Carolina, which has a different system from
Washington. United States v. Loredo-Mendez, 638 F. App’x 423, 424-25 (5th Cir.
2016); United States v. Zacarias-Lopez, 583 F. App’x 354 (5th Cir. 2014). 3 None
of these cases puts beyond debate the point we emphasized in Cruz-de Jesus.
At best, they show diverse viewpoints over a difficult question. Nothing has so
clearly resolved the issue that we can say that the district court “clearly” or
“obviously” erred.
       Consequently, we AFFIRM.




       3 Recinos also cites two, one-sentence orders granting the parties’ unopposed motions
to remand for resentencing. Such orders are neither binding nor persuasive authority in
other cases.
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