      Case: 14-40091     Document: 00513123100         Page: 1     Date Filed: 07/21/2015




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

                                    No. 14-40091
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                           July 21, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk


UNITED STATES OF AMERICA,
                                                 Plaintiff–Appellee,
versus
LUIS ALBERTO SEPULVEDA-URIBE,
                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:13-CR-1398




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *

       Luis Alberto Sepulveda-Uribe appeals the sentence imposed on his con-
viction of being found unlawfully present in the United States following depor-
tation. First, he claims that the district court plainly erred in determining that
his   Massachusetts       drug-distribution      conviction      warranted      a      16-level

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40091

enhancement under to U.S.S.G. § 2L1.2(b)(1)(A)(i).          He contends that the
statute under which he was convicted defines distribution to include a transfer
of a controlled substance to another without receiving remuneration and thus
does not satisfy the guideline’s definition of a drug-trafficking offense.

      In United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir. 2015),
petition for cert. filed (June 19, 2015) (No. 14-10355), this court held that an
enhancement under § 2L1.2(b)(1)(A)(i) for a drug-trafficking offense, as that
term is defined in the commentary to that guideline, is warranted regardless
of whether the conviction for that offense required proof of remuneration or
commercial activity. Thus, Sepulveda-Uribe has not shown that the district
court committed “clear or obvious” error in imposing the enhancement based
on his cocaine-distribution conviction. See Puckett v. United States, 556 U.S.
129, 135 (2009).

      Second, Sepulveda-Uribe maintains that the district court reversibly
erred by changing the allocation of the criminal-history points from his cocaine-
trafficking offense to his drug-distribution offense. He contends that there is
no caselaw from this court as to the proper application of U.S.S.G. § 4A1.2(a)(2)
where concurrent sentences are imposed with identical terms of imprisonment
and that the district court recognized that the guideline was silent as to the
proper method for assigning points under those circumstances. In light of the
alleged ambiguity in the guideline, Sepulveda-Uribe urges that the rule of len-
ity should be applied to yield the lesser sentence.

      Because Sepulveda-Uribe preserved the issue for appeal, we review the
district court’s application of the guidelines de novo and its factual findings for
clear error. United States v. Teran-Salas, 767 F.3d 453, 457 (5th Cir. 2014),
cert. denied, 135 S. Ct. 1892 (2015). A prior drug-trafficking conviction quali-
fies for a 16-level enhancement under § 2L1.2 only if the conviction received


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                                  No. 14-40091

criminal-history points. § 2L1.2(b)(1)(A). Prior sentences that were imposed
on the same day are treated as a single sentence. § 4A1.2(a)(2)(B). Section
4A1.2(a)(2) instructs that, in applying U.S.S.G. § 4A1.1 to prior sentences that
are treated as a single sentence, the criminal-history points should be applied
to “the longest sentence of imprisonment if concurrent sentences were
imposed.” § 4A1.2(a)(2). But the guideline provides no specific instruction as
to the assessment of points if the concurrent sentences were identical.

      The rule of lenity requires an ambiguous guideline to be interpreted in
favor of a defendant only if, after consideration of the provision’s “text, struc-
ture, history, and purpose, there remains a grievous ambiguity or uncertainty
in the statute, such that the Court must simply guess as to what Congress
intended.” United States v. Castleman, 134 S. Ct. 1405, 1416 (2014) (internal
quotation marks and citation omitted); see also United States v. Bustillos-Pena,
612 F.3d 863, 868-69 (5th Cir. 2010).       Although we have not interpreted
§ 4A1.2(a)(2) in this context, the language of the guideline does not present a
grievous ambiguity. Based on the directive to use the longer sentence, it can
be inferred that where the concurrent sentences are identical, the court should
assign the points to the prior sentence that will result in the greater sentence.
The district court’s remarks made before reallocating the criminal history
points imply that it did just that. In light of the guideline’s clear directive to
apply criminal-history points to “the longest sentence of imprisonment if con-
current sentences were imposed,” the court did not commit error in reassigning
the criminal-history points to the qualified drug-trafficking offense.        See
§ 4A1.2(a)(2).

      AFFIRMED.




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