     Case: 17-40807   Document: 00514599703     Page: 1   Date Filed: 08/14/2018




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

                                                                       FILED
                                 No. 17-40807                    August 14, 2018
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk


             Plaintiff – Appellee,

v.

JORGE ENRIQUE PONCE-FLORES,

             Defendant – Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas


Before KING, ELROD, and HAYNES, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Jorge Enrique Ponce-Flores pleaded guilty to being unlawfully present
in the United States after removal following his conviction for an aggravated
felony. On appeal, he contends that the district court plainly erred when it
applied an enhancement based on Ponce-Flores’s aggregate sentence.                    We
AFFIRM.
                                       I.
      Jorge Enrique Ponce-Flores pleaded guilty to being unlawfully present
in the United States after removal following his conviction for an aggravated
felony. Ponce-Flores was previously convicted in a California state court for:
(1) possession for sale of a controlled substance, for which he was sentenced to
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                                  No. 17-40807
four years of imprisonment; (2) possession of a deadly weapon, for which he
was sentenced to two years of imprisonment; and (3) transportation of a
controlled substance, for which he was sentenced to one year of imprisonment.
He was to serve the two-year sentence concurrently with the four-year
sentence, whereas the one-year sentence would run consecutively to the four-
year sentence. Each of the three sentences was imposed on the same day and
resulted from offenses listed in the same charging instrument.
      The   Probation   Officer   applied   a    10-level   enhancement     under
§ 2L1.2(b)(2)(A) of the United States Sentencing Guidelines based on an
aggregate sentence of five years. Under § 2L1.2(b)(2):
      If, before the defendant was ordered deported or ordered removed
      from the United States for the first time, the defendant
      sustained—
             (A) a conviction for a felony offense (other than an illegal
             reentry offense) for which the sentence imposed was five
             years or more, increase by 10 levels . . . .
Section 2L1.2(b)(2) instructs that the greatest applicable enhancement shall
apply and proceeds to list other enhancements that vary depending on the
length of the sentence imposed: a two-year sentence results in an 8-level
enhancement and a sentence exceeding one year and one month results in a 6-
level enhancement. U.S.S.G. § 2L1.2(b)(2)(B)–(C). Ponce-Flores did not object
to the use of the aggregate sentence as a basis for the 10-level enhancement.
      With this 10-level enhancement, Ponce-Flores’s Guidelines range was 30
to 37 months’ imprisonment. According to Ponce-Flores, with the eight-level
enhancement he would have received absent the alleged error, his Guidelines
range would have been 24 to 30 months’ imprisonment. The district court
imposed a sentence of 30 months’ imprisonment to be followed by three years
of supervised release. Ponce-Flores timely appealed.



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                                    No. 17-40807
                                          II.
         Because Ponce-Flores did not object in the district court to the use of the
aggregate sentence as a basis for the 10-level enhancement, we review for plain
error. See United States v. Carlile, 884 F.3d 554, 556 (5th Cir. 2018). To
demonstrate plain error, Ponce-Flores must show: (1) an error or defect not
affirmatively waived; (2) that is “clear or obvious, rather than subject to
reasonable dispute”; and (3) that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If these three conditions are met, we
“should exercise [our] discretion to correct the forfeited error if the error
seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1905 (2018)
(quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)).
                                         III.
         Ponce-Flores argues that the district court plainly erred because “[t]he
plain language of [Guideline] §§ 2L1.2(b)(2)(A–D) unambiguously refers to a
sentence resulting from a single felony conviction, not an aggregate or total
sentence . . . .” Ponce-Flores cites the principle from our caselaw that “any
error that can be identified purely by an uncomplicated resort to the language
of the guidelines is plain.” United States v. Torres, 856 F.3d 1095, 1099 (5th
Cir. 2017). In addition, Ponce-Flores invokes the negative-implication canon,
expressio unius est exclusio alterius (hereinafter, expressio unius), to contend
that because § 2L1.2’s commentary cross-references § 4A1.2(b) but not
§ 4A1.2(a)(2)’s sentence-aggregation rule, the sentence-aggregation rule must
not apply.     Thus, Ponce-Flores argues that the district court should have
applied an eight-level enhancement because Ponce-Flores’s longest sentence
resulting from a single conviction was more than two years but fewer than five
years.


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                                 No. 17-40807
      In response, the government argues that § 4A1.2’s sentence-aggregation
rule applies to § 2L1.2(b)(2)(A) such that the 10-level enhancement was proper.
To support this argument, the government contends that the Guidelines “are
to be read as a whole,” citing Guideline § 1B1.11, Background (indicating that
the Guidelines should be “applied as a ‘cohesive and integrated whole’ rather
than in a piecemeal fashion” (quoting United States v. Stephenson, 921 F.2d
438, 441 (2d Cir. 1990))). According to the government, nothing in § 2L1.2’s
commentary precludes applying § 4A1.2’s sentence-aggregation rule to
§ 2L1.2(b)(2), and Ponce-Flores misapplies the expressio unius canon in
arguing otherwise. Moreover, the government emphasizes that the Fourth
Circuit in United States v. Martinez-Varela, 531 F.3d 298 (4th Cir. 2008), has
applied § 4A1.2’s sentence-aggregation rule to § 2L1.2.       In light of these
arguments, the government contends that even if Ponce-Flores could show that
the district court erred, such error would not be plain.
      As the parties’ arguments make clear, the key debate is whether the
sentence-aggregation rule from Guideline § 4A1.2(a)(2) applies to Guideline
§ 2L1.2(b)(2)(A) such that the 10-level enhancement for a prior sentence of five
years or more was appropriate. In § 2L1.2, “sentence imposed” is accorded “the
meaning given the term ‘sentence of imprisonment’ in Application Note 2 and
subsection (b) of § 4A1.2.” U.S.S.G. § 2L1.2 cmt. n.2. Section 4A1.2(b)(1)
defines “sentence of imprisonment” as “a sentence of incarceration [that] refers
to the maximum sentence imposed.” Application Note 2 of § 4A1.2 explains
that a defendant “must have actually served a period of imprisonment on such
sentence” for it to qualify as a “sentence of imprisonment” and states that
“criminal history points are based on the sentence pronounced, not the length
of time actually served.” U.S.S.G. § 4A1.2 cmt. n.2.
      Guideline § 4A1.2, entitled “Definitions and Instructions for Computing
Criminal History,” defines “prior sentence” as “any sentence previously
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                                  No. 17-40807
imposed upon adjudication of guilt . . . for conduct not part of the instant
offense.” U.S.S.G. § 4A1.2(a)(1). Section 4A1.2(a)(2) instructs that:
            If the defendant has multiple prior sentences, determine
      whether those sentences are counted separately or treated as a
      single sentence. . . . [P]rior sentences are counted separately
      unless (A) the sentences resulted from offenses contained in the
      same charging instrument; or (B) the sentences were imposed on
      the same day. Treat any prior sentence covered by (A) or (B) as a
      single sentence. . . .
            For purposes of applying § 4A1.1(a), (b), and (c), . . . . [i]f
      consecutive sentences were imposed, use the aggregate sentence of
      imprisonment.
Because Ponce-Flores’s three prior sentences were imposed on the same day
and resulted from offenses contained in the same charging instrument, his
sentences would be treated as a single sentence and the consecutive sentences
would be aggregated if § 4A1.2(a)(2) applies. See U.S.S.G. § 4A1.2(a)(2). This
would result in a total sentence of five years, producing a 10-level
enhancement. See U.S.S.G. § 2L1.2(b)(2)(A).
      “We determine whether an alleged error is plain by reference to existing
law at the time of appeal.” United States v. Bishop, 603 F.3d 279, 281 (5th Cir.
2010). “An error is not plain ‘unless the error is clear under current law.’” Id.
(quoting United States v. Olano, 507 U.S. 725, 734 (1993)) (determining that
the district court did not plainly err where “the question remains an open one
in the Fifth Circuit”); see also United States v. Salinas, 480 F.3d 750, 759 (5th
Cir. 2007) (determining that “[b]ecause this circuit’s law remains unsettled and
the other federal circuits have reached divergent conclusions on this issue,”
defendant could not show that the alleged error was “clear under existing law”
to satisfy prong two).
      Even assuming arguendo that the district court erred in applying the 10-
level enhancement, this error would not be plain. We have not addressed
whether § 4A1.2(a)(2)’s sentence-aggregation rule applies to § 2L1.2(b)(2)’s
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                                      No. 17-40807
enhancements for prior sentences in unlawful-entry cases.                 Moreover, the
parties’ briefs show that any potential error here cannot be “identified purely
by an uncomplicated resort to the language of the guidelines.” 1 See Torres, 856
F.3d at 1099.      Finally, we are aware of only one sister circuit that has
addressed this issue—the Fourth Circuit in Martinez-Varela—and that circuit
has held that it was appropriate to apply § 4A1.2’s sentence-aggregation rule
to § 2L1.2(b).
       In Martinez-Varela, the defendant pleaded guilty to illegal reentry after
removal following his conviction for an aggravated felony. 531 F.3d at 298.
The district court determined that the defendant’s three prior sentences for
felony drug-trafficking offenses, which were committed on the same day and
“arose out of the same set of events,” should be aggregated pursuant to
Guideline § 4A1.2(a)(2). Id. at 299. This aggregation resulted in a sentencing
enhancement under Guideline § 2L1.2(b).              Id.   Reviewing for an abuse of
discretion, the Fourth Circuit observed that the Guidelines should “be applied
as a cohesive and integrated whole rather than in a piecemeal fashion” and
noted sister circuits that have recognized the interrelation between Chapter 4
and § 2L1.2. Id. at 299, 300–01 (quoting Guideline § 1B1.11, Background); see,
e.g., United States v. Moreno-Cisneros, 319 F.3d 456, 459 (9th Cir. 2003)
(“Guideline § 4A1.2 is analogous to § 2L1.2(b)(1). . . . Section 4A1.2 is a broadly
applicable section of the Guidelines.”). In addition, the Fourth Circuit noted



       1 Ponce-Flores’s argument from the expressio unius semantic canon does not show that
the alleged error is plain. Expressio unius “properly applies only when . . . the thing
specified[] can reasonably be thought to be an expression of all that shares in the grant or
prohibition involved.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 107 (2012). Thus, “[v]irtually all the authorities who discuss the [expressio
unius] canon emphasize that it must be applied with great caution, since its application
depends so much on context.” Id. As the Fourth Circuit’s decision in Martinez-Varela shows,
it is reasonably debatable whether § 2L1.2’s cross-reference to § 4A1.2(b) but not to
§ 4A1.2(a)(2) means that the latter subsection does not apply.
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                                No. 17-40807
that the commentary to § 4A1.1 states that §§ 4A1.1 and 4A1.2 “must be read
together.” 531 F.3d at 302. On the basis of these persuasive points and “the
lack of any persuasive or direct precedent to the contrary,” the Fourth Circuit
concluded that the district court properly aggregated the defendant’s
sentences. Id.
      Given the absence of binding precedent, the lack of an uncomplicated
resolution based on the language of the Guidelines, and the persuasive
authority from the Fourth Circuit, we cannot say that the district court
committed error that was “clear or obvious, rather than subject to reasonable
dispute.” See Puckett, 556 U.S. at 135. Having concluded that Ponce-Flores
has not satisfied prong two even assuming that he has satisfied prong one, we
go no further. See Bishop, 603 F.3d at 282.
                                     IV.
      Accordingly, we AFFIRM the district court’s judgment.




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