                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                FILED
                       ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                          March 6, 2006
                             No. 05-14518
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                   D. C. Docket No. 05-00006-CR-HL-6

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

RIGOBERTO TAPIA CASTANEDA,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                     _________________________

                             (March 6, 2006)

Before TJOFLAT, DUBINA and FAY, Circuit Judges.

PER CURIAM:
      Rigoberto Tapia-Castaneda appeals his 71-month sentence, imposed after he

pled guilty to illegal re-entry by a deported alien, a violation of 8 U.S.C.

§§ 1326(a)(2) and (b)(1). On appeal, he argues that the district court erred by

using the same prior conviction to increase his base offense level under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) and also increase his criminal history category from III to IV.

For the reasons set forth more fully below, we affirm.

      Tapia-Castaneda pled guilty pursuant to an agreement. At the plea colloquy

and in the plea agreement, Tapia-Castaneda admitted to the following facts. Tapia-

Castaneda is a native and citizen of Mexico, and in 1989 was convicted of assault

with a firearm upon a law enforcement officer in Los Angeles, California, a felony

offense. In September 1994, after serving his sentence, Tapia-Castaneda was

deported from the United States. On February 28, 2005, an Immigration and

Customs Enforcement agent met with Tapia-Castaneda at Thomas County Jail

Justice Center in Thomasville, Georgia. After being advised of and waiving his

Miranda rights, Tapia-Castaneda admitted that he was a citizen of Mexico, had

been deported in 1994, and had re-entered the United States without permission to

do so. Immigrations and Customs Enforcement (ICE) records confirmed that

Tapia-Castaneda had not sought permission to re-enter from the United States

government.



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      A presentence investigation report set Tapia-Castaneda’s base offense level

at 8, pursuant to U.S.S.G. § 2L1.2(a). Tapia-Castaneda then received a 16-level

enhancement under § 2L1.2(b)(1)(A)(ii) because he previously had been deported

following a conviction for felony crime of violence, that is, the firearm charge. His

offense level was reduced three levels for acceptance of responsibility under

§§ 3E1.1(a) and (b), for a total offense level of 21. Tapia-Castaneda was assessed

nine criminal history points, including three points for the assault with a firearm

charge, placing him in criminal history category IV. At offense level 21, criminal

history category IV, the guidelines recommended a sentence between 57 and 71

months’ imprisonment. No objections were made to the PSI.

      At sentencing, Tapia-Castaneda reiterated that he had no objections to the

PSI, and admitted that his sentence should be enhanced based on his prior

convictions. However, he requested that the court consider a lesser enhancement

to his offense level in light of the fact that the guidelines were no longer mandatory

and his offense level was already being enhanced for his prior convictions, as

reflected by his criminal history category IV. Absent the 16-level enhancement for

being deported following a conviction for a felony crime of violence, Tapia-

Castaneda argued that his sentencing range would be 10 to 16 months instead of 57

to 71 months.



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      The district court found that Tapia-Castaneda’s offense level was 21 and his

criminal history category was IV, providing for a recommended sentence of 57 to

71 months’ imprisonment. The court then rejected Tapia-Castaneda’s request for

leniency, stating that, “in view of [Tapia-Castaneda’s] situation of being here

illegally and his extensive record of violation of the criminal laws of this country

while he is an uninvited guest, I think that the calculated guideline range is

extremely fair to him.” The court then sentenced Tapia-Castaneda to 71 months’

imprisonment.

      On appeal, Tapia-Castaneda argues that the district court erred by sentencing

him at criminal history category IV, when the same prior conviction used to

enhance his criminal history was also used to enhance his base offense level by 16

levels under § 2L1.2(b)(1)(A)(ii). Essentially, Tapia-Castaneda argues that the

district court had discretion under § 2L1.2, comment. (n.6), on whether or not to

consider his prior conviction when calculating his criminal history under Chapter

Four, Part A of the guidelines, but that the district court believed it had no choice

in the matter based on the PSI.

      In this case, Tapia-Castaneda did not object to the district court’s

calculations, and the failure to be aware of its discretion, rather, he requested that

the court take into consideration the fact that his sentence was enhanced twice



                                            4
based on the same prior conviction, and but for the 16-level enhancement, his

sentence would be significantly less. Accordingly, we will review only for plain

error. “An appellate court may not correct an error the defendant failed to raise in

the district court unless there is: (1) error, (2) that is plain, and (3) that affects

substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.),

cert. denied 125 S.Ct. 2935 (2005) (quotation and citation omitted). “If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. Furthermore, in order for an error

to be plain, it must be clear under current law. See United States v. Aguillard, 217

F.3d 1319, 1321 (11th Cir. 2000). We have “also held that where neither the

Supreme Court nor this Court has ever resolved an issue, and other circuits are split

on it, there can be no plain error in regard to that issue.” Id.

       Pursuant to § 2L1.2(b)(1)(A), if a defendant previously was deported after a

conviction for a felony that was a crime of violence, a 16-level enhancement is

warranted. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary to § 2L1.2 specifically

states that a “conviction taken into account under subsection (b)(1) is not excluded

from consideration of whether that conviction receives criminal history points

pursuant to Chapter Four, Part A (Criminal History).” U.S.S.G. § 2L1.2, comment.



                                              5
(n.6). Tapia-Castaneda’s argument is that this language leaves it to the district

court’s discretion whether to consider the same prior conviction when determining

criminal history under Chapter Four, and the district court in this case believed that

it lacked such discretion. He relies on the commentary to § 2L1.1, which provides

more specifically that “[p]rior felony conviction(s) resulting in an adjustment

under subsection (b)(3) are also counted for purposes of determining criminal

history points pursuant to Chapter Four, Part A (Criminal History).” U.S.S.G.

§ 2L1.1, comment. (n.5). Thus, because the Sentencing Commission used “are

also counted” in one application note, and “is not excluded” in another, Tapia-

Castaneda argues that the Commission intended to grant courts more discretion

when determining whether or not to count a prior conviction used for an

enhancement in § 2L1.2(b) towards Chapter Four determinations.

      Notwithstanding the fact that there is nothing in the record to indicate that

the district court, as Tapia-Castaneda argues, “believed it had no other choice” than

to consider the prior conviction when determining Tapia-Castaneda’s criminal

history under Chapter Four, Part A (Criminal History), there does not appear to be

a single case from any circuit interpreting the aforementioned commentaries to

§§ 2L1.1 and 2L1.2 in the manner that Tapia-Castaneda suggests. Moreover, as

the commentary to § 1B1.1 (Application Instructions) make clear:



                                           6
      Absent an instruction to the contrary, enhancements under Chapter
      Two, adjustments under Chapter Three, and determinations under
      Chapter Four are to be applied cumulatively. In some cases, such
      enhancements, adjustments, and determinations may be triggered by
      the same conduct.

U.S.S.G. § 1B1.1, comment. (n.4(B)). Accordingly, discretionary or not, the

district court did not commit any error by using a prior conviction to both enhance

Tapia-Castaneda’s offense level and calculate his criminal history category.

      Finally, the district court specifically rejected Tapia-Castaneda’s request to

be given leniency based on the fact that the same conviction that warranted the 16-

level enhancement also increased his criminal history category to IV. The court

disagreed that the guidelines range was unfair to Tapia-Castaneda in light of his

multiple violations of law while an “uninvited guest” in the United States. Thus,

the district court did consider whether Tapia-Castaneda’s sentence should be less

than what the guidelines proposed in light of the prior conviction issue, and

rejected his argument.

      Therefore, we conclude that the district court did not commit any plain error

when applying the guidelines and calculating Tapia-Castaneda’s sentence. We,

therefore, affirm.

      AFFIRMED.




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