     Case: 16-51462      Document: 00514293184         Page: 1    Date Filed: 01/03/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                      No. 16-51462
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          January 3, 2018

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

JORGE MATIAS-SANCHEZ,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:15-CR-1257-1


Before DAVIS, HAYNES and COSTA, Circuit Judges.
PER CURIAM:*
       Jorge Matias-Sanchez appeals the district court’s assessment of two
criminal history points based on a sentence initially imposed more than ten
years before he commenced the instant offense. For the reasons explained
below, we AFFIRM.
                                    I. Background
       On September 18, 2015, United States Border Patrol agents encountered
Matias-Sanchez near Uvalde, Texas. He admitted that he was a Mexican



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-51462

citizen without authority to be in the United States, having been removed by
immigration authorities on January 4, 2013.       He was indicted for illegal
reentry after removal in violation of 8 U.S.C. § 1326(a), (b)(1), and (b)(2). He
pleaded guilty to the charges.
      A presentence report (“PSR”) was prepared using the 2015 United States
Sentencing Guidelines (“U.S.S.G.”). The PSR recommended a base offense
level of 21 under U.S.S.G. § 2L1.2 and assigned a criminal history category VI,
which yielded a Guidelines range of 77 to 96 months. At sentencing, the
district court used the 2016 United States Sentencing Guidelines, which
calculated a Guidelines range of 51 to 63 months. Included in calculating
Matias-Sanchez’s criminal history points was a Deferred Entry of Judgment
(“DEJ”) entered on August 30, 2005, in the Superior Court of Orange County
in Santa Ana, California, after a guilty plea to felony possession of
methamphetamine. The DEJ was terminated on September 29, 2005, after
Matias-Sanchez did not appear at a hearing. Following the expiration of his
probation on a separate count, Matias-Sanchez was sentenced to 90 days
imprisonment on September 4, 2008. The PSR assessed two criminal history
points for this conviction under U.S.S.G. § 4A1.1(b). Without those two points,
Matias-Sanchez’s criminal history category would have been V and his
Guidelines range would have been 46-57 months. Matias-Sanchez did not
object to counting that sentence toward his criminal history points at the time
of sentencing. He argues for the first time on appeal that assessing the two
criminal history points was in error.
                          II. Standard of Review
      An argument raised for the first time on appeal is reviewed under the
plain-error standard. United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir.
2011). To prevail on plain error review, an appellant must show (1) “an error
or defect,” (2) that is “clear or obvious, rather than subject to reasonable

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                                       No. 16-51462

dispute,”    and (3) that “affected the appellant’s substantial rights.” United
States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting
Puckett v. United States, 556 U.S. 129, 135 (2009)). If the first three prongs are
met, we have “the discretion to remedy the error—discretion which ought to be
exercised only if the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (alteration in original).
                                    III. Discussion
       Matias-Sanchez argues that his California conviction falls outside the
applicable time period of the DEJ for sentencing purposes.                     For certain
revocations, U.S.S.G. § 4A1.2(k) determines (1) the relevant term of
imprisonment and (2) the applicable time period under which offenses are
counted for sentencing purposes.              Section 4A1.2(k) applies to “a prior
revocation of probation, parole, supervised release, special parole, or
mandatory release.” The parties disagree about whether termination of a DEJ
constitutes a relevant “revocation” for the purposes of § 4A1.2(k). 1
       Matias-Sanchez argues that under U.S.S.G. §§ 4A1.2(e)(2) and (k)(2)(C),
his original sentence should result in criminal history points only if it was
imposed within 10 years of the instant offense. §§4A1.2(k)(2)(C); 4A1.2(e). If §
4A1.2(k) applies, then Matias-Sanchez argues that his conviction falls outside
the ten-year period applied to sentences of less than one year and one day
because, he contends, the original sentence was imposed on August 30, 2005,




       1 The PSR states that the DEJ was “vacated” on September 29, 2005. The word
“vacate” differs from the language usually associated with a DEJ. See, e.g., In re Scoggins,
114 Cal. Rptr. 2d 508, 509–510 (Cal. Ct. App. 2001) (noting that “the court terminated
deferred entry of judgment” on two different occasions after the defendant failed to appear at
a progress report hearing and a proof of completion hearing (emphasis added)). Because
neither party raises the argument that the disposition of the DEJ in this case differed from
the usual course, we do not address whether a vacated sentence affects the analysis in this
case. We use the word “terminated” in conjunction with a DEJ in this opinion to be consistent
with conventional terminology.
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and he was arrested for having illegally reentered after removal on September
18, 2015 (fewer than three weeks outside the applicable time period).
       We need not decide whether a California conviction of this sort falls
within the framework of §§4A1.2(k)(2)(C) and 4A1.2(e) because even assuming
arguendo that it does, he fails to persuade us that we should exercise our
discretion to correct the alleged error. Under the fourth prong of plain error
analysis, we have discretion to remedy an error which “seriously affects the
fairness, integrity or public reputation of judicial proceedings.” 2 Puckett, 556
U.S. at 135. “[W]e do not view the fourth prong as automatic if the other three
prongs are met.” Escalante-Reyes, 689 F.3d at 425. Instead, we take a holistic
approach to evaluating this prong, analyzing the individual facts of the case
and whether failure to grant relief would result in a “miscarriage of justice.”
See United States v. Wikkerink, 841 F.3d 327, 339 (5th Cir. 2016); Escalante-
Reyes, 689 F.3d at 424-25.
       In this case, we do not see fit to exercise our discretion to correct Matias-
Sanchez’s sentence. We note that Matias-Sanchez, even if we accepted all of
his arguments, only missed counting the prior sentence by three weeks; he
used those weeks to abscond and fail to meet even the initial requirements of
the California process.
       Further, during the sentencing hearing, the district court noted that
Matias-Sanchez had been sentenced to 50 months’ imprisonment and a three-



       2 The Supreme Court has granted certiorari to review the proper application of this
prong from our decision in United States v. Rosales-Mireles, 850 F.3d 246 (5th Cir. 2017),
cert. granted, No. 16-9493, 2017 WL 2505758 (U.S. Sept. 28, 2017). In the meantime, we
apply the en banc majority opinion in Escalante-Reyes rather than the “shocks the conscience”
language from the dissenting opinion. United States v. Broussard, 669 F.3d 537, 554 (5th
Cir. 2012) (explaining that, under our rule of orderliness, the earlier of the two opinions
controls); Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986) (even when the Supreme
Court has granted certiorari, we continue to follow our own precedents unless and until the
Court says otherwise).

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year term of supervised release in August 2009 for attempted reentry after
deportation; he committed the same crime here, indicating that he “didn’t learn
anything.”     While Matias-Sanchez argued for a downward variance to 40
months, the court did not believe that “40 months [was] going to teach him
what 50 months didn’t teach him.” The court was further concerned that
Matias-Sanchez had “been in jail or committing an offense since he was 22
without stop[ping],” and while on supervised release in 2014, he was using
marijuana monthly, “not showing [the court] good judgment.”                    The court
determined that a fair and reasonable sentence was 60 months in prison.
       The district court carefully reasoned its decision in concluding that 60
months was an appropriate sentence in this case. We will not turn a blind eye
to Matias-Sanchez’s consistent, repeated disregard for the law.                   Matias-
Sanchez had previously been sentenced to 50 months imprisonment for this
offense, and yet, he committed it again. We have not been convinced that
failing to recognize this error would result in a miscarriage of justice or would
seriously affect the fairness, integrity, or public reputation of judicial
proceedings. We thus decline to exercise our discretion to correct the error.
       For the foregoing reasons, we AFFIRM the sentence imposed by the
district court. 3




       3   We accept Matias-Sanchez’s concession that his other issue concerning failure to
allege his prior conviction in his indictment is foreclosed. See Almendarez-Torres v. United
States, 523 U.S. 224 (1998).
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