     Case: 14-40888       Document: 00513062968         Page: 1     Date Filed: 06/02/2015




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

                                     No. 14-40888
                                                                                      Fifth Circuit

                                                                                    FILED
                                   Summary Calendar                              June 2, 2015
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                  Plaintiff - Appellee

v.

JOSE DE JESUS MARTINEZ-GARCIA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:14-CR-457


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Jose De Jesus Martinez-Garcia challenges his 57-month sentence,
imposed after pleading guilty to illegally reentering the United States after
deportation, in violation of 8 U.S.C. § 1326(a) and (b). He claims the district
court erred in applying a 16-level enhancement to his offense level under
Sentencing Guideline § 2L1.2(b)(1)(A) (requiring enhancement if illegal-




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-40888

reentry defendant was previously deported after conviction for felony crime of
violence).
      The court based the enhancement on Martinez’ prior North Carolina
conviction for indecent liberties with a child, for which he was sentenced to 10-
12 months’ imprisonment. Martinez claims his prior conviction was not a
felony because, under North Carolina’s structured sentencing statute, he was
subject to no more than 12 months’ imprisonment. See U.S.S.G. § 2L1.2 cmt.
n.2 (defining felony as a “federal, state, or local offense punishable by
imprisonment for a term exceeding one year”).
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Martinez did not preserve this challenge in district court, however.
Therefore, review is only for plain error. E.g., United States v. Broussard, 669
F.3d 537, 546 (5th Cir. 2012). Under that standard, Martinez must show a
forfeited plain (clear or obvious) error that affected his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the
discretion to correct the error, but should do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      When Martinez committed the North Carolina offense in September
2009, state law punished indecent liberties with a child as a Class F felony, for
which the presumptive maximum sentence was 47 months’ imprisonment for



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                                   No. 14-40888

an offender with a prior record level of VI. See N.C. Gen. Stat. Ann. §§ 14-
202.1 (2009); 15A-1340.17(c)-(d). The state court ruled Martinez should be
punished under the mitigated range as a Class F felon with a prior record level
of I.    The mitigated range of minimum punishment was 10-13 months’
imprisonment. § 15A-1340.17(c). The court imposed a minimum sentence at
the bottom of that range, and the corresponding maximum sentence was 12
months. Id. § 15A-1340.17(c)-(d). Martinez claims the 12-month maximum
determines whether his offense was a felony for purposes of Guideline
§ 2L1.2(b)(1)(B). The Government counters that the 20-month maximum term
of imprisonment for the aggravated-sentencing range for an offender with a
prior record level of I governs.
        This issue need not be decided. The state court could have sentenced
Martinez to a minimum term of 13 months’ imprisonment, for which the
corresponding maximum term was 16 months. E.g., United States v. Selvan-
Cupil, 2015 WL 860779, at *5 (5th Cir. 2 Mar. 2015) (“What matters for the
felony determination is not the sentence imposed, but whether the defendant
was eligible for a sentence exceeding a year.”), petition for cert. filed (17 Mar.
2015) (No. 14-8964). In other words, that the state court sentenced Martinez
to a minimum term of 10 months’ imprisonment is irrelevant. E.g., id. In
short, the district court did not commit clear or obvious error.
        AFFIRMED.




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