                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4172


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

FEDERICO ESPINDOLA-PINEDA, a/k/a Frederico Espindola-Pineda,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. James C. Dever III, Chief District Judge. (4:17-cr-00033-D-1)


Submitted: October 31, 2018                                 Decided: December 11, 2018


Before WILKINSON, AGEE, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


G. Alan DuBois, Federal Public Defender, Jennifer C. Leisten, Research & Writing
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Federico Espindola-Pineda appeals his sentence after pleading guilty to illegal

reentry of a removed alien under 8 U.S.C. § 1326(a) (2012). The district court, using the

2014 edition of the Sentencing Guidelines, sentenced Espindola-Pineda at the top of his

Sentencing Guidelines range to seven months in prison, to run consecutively to any state

sentence, and one year of supervised release. On appeal, Espindola-Pineda contends that

the district court improperly used the 2014 Guidelines to calculate his sentence because

his North Carolina conviction for conspiracy to traffic in methamphetamine was relevant

conduct under U.S. Sentencing Guidelines Manual § 1B1.3(a) (2016), and the district

court erred by not imposing his sentence to run concurrently with his North Carolina

sentence under USSG 5G1.3(c) (2016). We affirm.

       “As a general matter, in reviewing any sentence whether inside, just outside, or

significantly outside the Guidelines range, we review for an abuse of discretion.” United

States v. Bolton, 858 F.3d 905, 911 (4th Cir. 2017). “Pursuant to this standard, we review

the district court’s legal conclusions de novo and factual findings for clear error.” Id.

“Whether a crime constitutes ‘relevant conduct’ under the Guidelines is a factual question

we review for clear error.” United States v. Robinson, 744 F.3d 293, 300 (4th Cir. 2014).

       We first address Espindola-Pineda’s contention that the district court should have

used the 2016 Guidelines during his sentencing. Espindola-Pineda did not object to the

district court’s use of the 2014 Guidelines; therefore, we review this claim for plain error.

“To prevail on plain error review, an appellant must show (1) that the district court erred,

(2) that the error was plain, and (3) that the error affected his substantial rights.” United

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States v. Cohen, 888 F.3d 667, 685 (4th Cir. 2018). “An error can be ‘plain’ only on the

basis of settled law.” United States v. Carthorne, 878 F.3d 458, 464 (4th Cir. 2017). The

Guidelines direct sentencing courts to use the manual in effect when the defendant is

sentenced unless doing so would violate the Ex Post Facto Clause of the Constitution.

USSG § 1B1.11(a), (b)(1); see Peugh v. United States, 569 U.S. 530, 532-33 (2013).

       We conclude that the district court did not plainly err in utilizing the 2014

Guidelines when sentencing Espindola-Pineda. At the time of his sentencing, Espindola-

Pineda had pleaded guilty to a state charge of conspiracy to traffic in methamphetamine

and was serving a sentence of 70-93 months’ imprisonment on that charge. He requested

that the district court run his illegal reentry sentence concurrently to his state sentence.

The district court denied that request.

       The district court used the 2014 Guidelines due to a perceived ex post facto

problem that would arise in using the 2016 Guidelines. Under the 2014 Guidelines,

Espindola-Pineda was subject to a total offense level of six and a criminal history

category of II, for a Guidelines range of one to seven months’ imprisonment. Under the

2016 Guidelines, Espindola-Pineda’s total offense level would have increased to 15, and

his Guidelines range would have been 21 to 24 months. Espindola-Pineda contends that

his state methamphetamine offense would have been relevant conduct under USSG

§ 1B1.3(a) (2016), because it would have been a specific offense characteristic under

USSG § 2L1.2(b)(3) (2016), and the 2016 Guidelines would have mandated his illegal

reentry sentence be run concurrent with the state sentence, for a shorter overall



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incarceration period. Therefore, he argues that the district court plainly erred in using the

2014 Guidelines during his sentencing.

          We disagree.    The only relevant distinction between the two editions of the

Guidelines is the addition of various specific offense characteristics to § 2L1.2 of the

2016 Guidelines. The 2016 Guidelines would have treated Espindola-Pineda’s state

offense as a specific offense characteristic that would have increased his total offense

level by 10 points. However, contrary to Espindola-Pineda’s belief, the 2016 Guidelines

would not have recommended a concurrent sentence. The relevant Guidelines provision

states:

          If . . . a term of imprisonment resulted from another offense that is relevant
          conduct to the instant offense of conviction under the provisions of
          subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct), the
          sentence for the instance offense shall be imposed . . . to run concurrently
          to the remainder of the undischarged term of imprisonment.

USSG § 5G1.3(b)(2). Therefore, § 5G1.3(b) only applies to offenses that are relevant

conduct under § 5G1.3. Commentary to § 5G1.3 explicitly notes that relevant conduct

does not include any offense “for which the defendant received an increase pursuant to

USSG § 2L1.2 (Unlawfully Entering or Remaining in the United States).”                     USSG

§ 5G1.3 cmt. n.2(B). Thus, Espindola-Pineda would not have received the benefit of a

Guidelines recommendation that his illegal reentry sentence run concurrent to his state

sentence under the 2016 Guidelines, and the district court did not plainly err in utilizing

the 2014 Guidelines to avoid an actual ex post facto problem created by the increased

sentencing range in the 2016 Guidelines.



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      Espindola-Pineda    alternatively   challenges   his   sentence   as   substantively

unreasonable under the 2014 Guidelines.         Sentences within or below a properly

calculated Guidelines range are presumed reasonable, and this “presumption can only be

rebutted by showing that the sentence is unreasonable when measured against the 18

U.S.C. § 3553(a) factors.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

Using the 2014 Guidelines, the district court correctly calculated Espindola-Pineda’s

Guidelines range as being one to seven months imprisonment. The district court used the

§ 3553(a) factors to explain that illegal reentry was a serious offense, that Espindola-

Pineda should receive a punishment specific to this offense, and the need to deter him

from illegally returning to the United States. After examining the record, we conclude

that Espindola-Pineda has not rebutted the presumption that his sentence was reasonable.

      Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional process.

                                                                                AFFIRMED




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