     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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                 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,



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                                   No. 19-40036

556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
         Our court recently decided a case almost identical to the instant one–
both factually and legally–which was similarly briefed by the same federal
public-defender’s office. See United States v. Vega-Ruiz, No. 18-40475, 2019
WL 2303876 (5th Cir. 29 May 2019). Although Vega-Ruiz is an unpublished
decision, and therefore not precedential, its reasoning is persuasive, as
discussed below. See 5th Cir. R. 47.5.4; Ballard v. Burton, 444 F.3d 391, 401
n.7 (5th Cir. 2006) (recognizing unpublished decisions issued after 1 January
1996 are not controlling precedent but may be considered persuasive
authority).
         Pursuant to the Guidelines, defendant’s base offense level for unlawfully
entering the United States is increased for prior convictions. See U.S.S.G.
§ 2L1.2(b). The commentary instructs sentencing courts, however, to “use only
those convictions that receive criminal history points under § 4A1.1(a), (b), or
(c)”.    U.S.S.G. § 2L1.2, cmt. n.3.     Whether the court erred in increasing
Gonzalez’ offense level on account of his state marihuana conviction, therefore,
depends on whether Gonzalez establishes plain (clear or obvious) error in the
assignment of two criminal-history points to that conviction.
         Under Guideline § 4A1.1, defendant receives criminal-history points for
prior sentences. A “prior sentence” is “any sentence previously imposed upon
adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere,
for conduct not part of the instant offense”. U.S.S.G. § 4A1.2(a)(1). Whether
the conduct is part of the instant offense is determined with reference to the
relevant conduct provisions of Guideline § 1B1.3. See U.S.S.G. § 4A1.2 cmt.
n.1. As the commentary states:



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      A sentence imposed after the defendant’s commencement of the
      instant offense, but prior to sentencing on the instant offense, is a
      prior sentence if it was for conduct other than conduct that was
      part of the instant offense. Conduct that is part of the instant
      offense means conduct that is relevant conduct to the instant
      offense under the provisions of § 1B1.3 (Relevant Conduct).
Id.; see also United States v. Yerena-Magana, 478 F.3d 683, 687–88 (5th Cir.
2007) (discussing the relationship between § 4A1.2 and § 1B1.3).
      The Guidelines define the term “relevant conduct” in several different
ways. United States v. Bacon, 646 F.3d 218, 221 (5th Cir. 2011); see U.S.S.G.
§§ 1B1.3(a)(1)–(4). Gonzalez relies on Guideline § 1B1.3(a)(1)(A), which states
relevant conduct includes “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by the
defendant”, as long as those actions “occurred during the commission of the
offense of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense”. U.S.S.G.
§ 1B1.3(a)(1)(A).
      Gonzalez contends the error in imposing two criminal-history points
based on the state marihuana conviction is clear or obvious because the PSR
shows he entered the United States on 18 April 2018 while in actual or
constructive possession of the bundle of marihuana. He therefore maintains
his commission of the illegal-reentry offense and the marihuana-possession
offense were simultaneous and interdependent, qualifying the marihuana
offense as relevant conduct.
      In support of his assertion, Gonzalez cites United States v. Henry. 288
F.3d 657 (5th Cir. 2002). In that case, our court, also reviewing for plain error,
vacated defendant’s sentence because it was erroneous to include criminal-
history points where defendant’s “state conviction for criminal trespass and




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federal conviction for possession of a firearm while under a restraining order
clearly resulted from the same conduct”. Id. at 665.
      But our court addressed and rejected this same line of reasoning in Vega-
Ruiz, 2019 WL 2303876, *2–4. As discussed in Vega-Ruiz, our court held there
was no plain error when a district court assigned criminal-history points for a
sentence stemming from an evading-and-resisting-arrest offense that occurred
weeks before defendant was charged with illegal reentry, reasoning each
offense could be viewed as “embodying . . . conduct severable by time, place,
and harmed societal interest”. Id. at *4 (quoting United States v. Vargas-
Garcia, 434 F.3d 345, 350 (5th Cir. 2005)). Our court has applied Vargas-
Garcia “to hold that a defendant’s unlawful entry offense was not committed
‘in preparation for’ his [later] marijuana possession offense, in part, because
the crimes ‘harmed different societal interests’”. Id. (quoting Yerena-Magana,
478 F.3d at 688–89).     Our court has therefore rejected the same claims
Gonzalez advances here on plain-error review.
      AFFIRMED.




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