     Case: 16-40752      Document: 00513883276         Page: 1    Date Filed: 02/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 16-40752                                 FILED
                                  Summary Calendar                        February 21, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FRANCISCO TREJO-MONTOYA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:16-CR-80-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Francisco Trejo-Montoya pleaded guilty to being found in the United
States after a previous deportation and received a 77-month prison sentence.
He appeals that sentence, arguing that the district court erred by assessing
three criminal history points for both his prior robbery and burglary sentences
based on the four-year prison terms that he received for each when his
probation was revoked. See U.S.S.G. §§ 4A1.1(a), 4A1.2(k)(1). Relying on


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40752     Document: 00513883276     Page: 2   Date Filed: 02/21/2017


                                  No. 16-40752

Application Note 11 to § 4A1.2, he asserts that one of these prior sentences
should have received no points because his probation for both offenses was
revoked on the same day, he received concurrent sentences upon revocation,
and the offenses were too old to qualify for criminal history points absent the
addition of the revocation sentences. Because Trejo-Montoya did not object to
the calculation of his criminal history score in the district court, we review for
plain error only. See United States v. Jasso, 587 F.3d 706, 709 (5th Cir. 2009).
      This court had not considered Application Note 11 in this context, and
the circuits that have addressed the issue have come to different conclusions.
Compare United States v. Flores, 93 F.3d 587, 592 (9th Cir. 1996), and United
States v. Streat, 22 F.3d 109, 110-11 (6th Cir. 1994), with United States v.
Norris, 319 F.3d 1278, 1286-87 (10th Cir. 2003). Accordingly, the district did
not plainly err in assigning three points for each prior sentence. See United
States v. Pedrez, 544 F. App’x 376, 376-77 (5th Cir. 2013); United States v.
Sanchez-Garcia, 307 F. App’x 829, 830-32 (5th Cir. 2009).
      AFFIRMED.




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