     Case: 09-20564     Document: 00511221631          Page: 1    Date Filed: 09/01/2010




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

                                                 FILED
                                                                         September 1, 2010
                                     No. 09-20564
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ELENILSON FLORES-RODRIGUEZ, also known as Elenilson Rodriguez Flores,
also known as Francisco Aquino, also known as Francisco L Aquino, also known
as Elenilson R. Rodriguez, also known as Elenilson Flores, also known as
Elenilson Flores Rodriguez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:08-CR-255-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Elenilson Flores-Rodriguez (Flores) appeals following his guilty-plea
conviction of illegal reentry. Flores was sentenced to 70 months of imprisonment
and three years of supervised release. Flores contends that the district court
erroneously calculated his criminal history score by assessing criminal history
points for a prior conviction and sentence under U.S.S.G. § 4A1.1(d) and (e).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20564

Specifically, Flores argues that the date of the commission of the instant offense
should be the date he reentered the United States rather than the date he was
found in the United States because the latter date is not indicative of his
propensity to recidivate, that using the date he was found in the United States
violates the Equal Protection Clause, and that assessing points under both
§ 4A1.1(d) and (e) constitutes impermissible double-counting for the same
conduct. Flores also contends that the district court failed to adequately explain
why it rejected his arguments for a lesser sentence.
      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for procedural and substantive reasonableness. Gall v. United States,
552 U.S. 38, 51 (2007). Improperly calculating the guidelines range or failing to
adequately explain the chosen sentence is a significant procedural error. Id.
      We have rejected Flores’s argument that the date of the commission of the
instant offense for § 4A1.1 purposes should be the date he reentered the United
States rather than the date he was found in the United States. See United
States v. Reyes-Nava, 169 F.3d 278, 280 (5th Cir. 1999); United States v.
Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996). Flores was found in the
United States on March 19, 2008. On that date, he was serving a sentence of
imprisonment. Accordingly, he was correctly assessed two points pursuant to
§ 4A1.1(d) and one point pursuant to § 4A1.1(e). § 4A1.1(d), (e), comment. (n.5).
      Flores cites no authority for his argument that using the date he was
found in the United States violates the Equal Protection Clause. Therefore, this
issue is waived for inadequate briefing. See United States v. Stalnaker, 571 F.3d
428, 439-40 (5th Cir. 2009).
      We have also rejected Flores’s argument that assessing criminal history
points under both § 4A1.1(d) and (e) constitutes impermissible double-counting.
See United States v. Sullivan, No. 09-30998, 2010 WL 2465072, at *1 (5th Cir.
June 15, 2010) (unpublished); United States v. Le, 161 F. App’x 362, 363-64 (5th



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                                 No. 09-20564

Cir. 2005). Therefore, there was no error in the calculation of his criminal
history score.
      Flores’s remaining argument that the district court failed to adequately
explain its reasons for rejecting his arguments for a lesser sentence is subject to
plain error review. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009). To show plain error, Flores must
demonstrate that the district court erred, that the error is clear or obvious, and
that the error affects his substantial rights. See Puckett v. United States, 129
S. Ct. 1423, 1429 (2009). If Flores makes such a showing, we have the discretion
to correct the error but only if it “‘seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.’” Id. (quoting United States v. Olano,
507 U.S. 725, 736 (1993)).
      We need not determine whether the district court erred because Flores
cannot show that the error affected his substantial rights. Flores argues only
that the inadequacy of the district court’s explanation deprived this court of the
ability to review his sentence. “While a district court errs by failing to explain
a sentence, the effect of that error on our review for reasonableness is
diminished when the sentence is within the Guidelines range.” Mondragon-
Santiago, 564 F.3d at 365. The 70-month sentence was within the guidelines
range of 70 to 87 months. Flores makes no other argument as to how an
adequate explanation would have changed his sentence. Therefore, he has failed
to show that the error, if any, affected his substantial rights.             See id.
Accordingly, there is no reversible plain error with respect to the procedural
reasonableness of his sentence. See id.
      The judgment of the district court is AFFIRMED.




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