     Case: 19-40351      Document: 00515246134         Page: 1    Date Filed: 12/20/2019




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

                                                                                FILED
                                    No. 19-40351                        December 20, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

WILLIAM GEOVANI VIVAR-LOPEZ,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 1:18-CR-713-1




Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *

       William Vivar-Lopez appeals his 30-month, below-guidelines sentence
for illegal reentry. He contends that the district court erred by considering



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40351     Document: 00515246134     Page: 2   Date Filed: 12/20/2019


                                  No. 19-40351

Application Note 3 of U.S.S.G. § 2L1.2, which indicates that if a defendant re-
ceives offense-level enhancements for prior convictions under § 2L1.2(b), those
prior convictions may garner criminal history points under U.S.S.G. § 4A1.1.
Vivar-Lopez urges that, in light of Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the
court should have given no deference to the commentary because the language
of § 2L1.2 is unambiguous. In addition, Vivar-Lopez maintains that because
§ 2L1.2 is the guideline that specifically addresses illegal-reentry offenses, the
court should not have applied criminal history points per § 4A1.1 for offenses
that resulted in offense level enhancements under § 2L1.2(b).

      As Vivar-Lopez concedes, we review for plain error, so he must show, as
the first requirement, a forfeited error that is clear or obvious. See Puckett v.
United States, 556 U.S. 129, 135 (2009). Kisor addressed the continuing via-
bility of deference to an agency’s interpretations of its own regulations under
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 an
agency’s interpretations. Kisor, 139 S. Ct. at 2415−16, 2423. Kisor did not
address the Sentencing Guidelines or the caselaw holding that the commen-
tary to the Guidelines is authoritative unless it violates federal law or the Con-
stitution, it is inconsistent with the Guideline being interpreted, or it consti-
tutes a plainly erroneous reading of the Guideline. See Stinson v. United
States, 508 U.S. 36, 38 (1993).

      Because there is no caselaw from the Supreme Court or this court ad-
dressing the effect of Kisor on the Sentencing Guidelines in general or on Appli-
cation Note 3 of § 2L1.2 in particular, 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).

      AFFIRMED.


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