     Case: 17-50298      Document: 00514408379         Page: 1    Date Filed: 03/29/2018




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


                                    No. 17-50298
                                                                               FILED
                                                                         March 29, 2018
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VICTOR ARMANDO CRUZ-COLOCHO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:16-CR-101-1


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       Victor Armando Cruz-Colocho appeals the above-guidelines 60-month
sentence he received following his guilty plea conviction for illegal reentry. He
renews his argument that the statutory maximum sentences applicable under
8 U.S.C. § 1326(b) do not apply in his case because his indictment did not allege
any prior felony conviction, citing Apprendi v. New Jersey, 530 U.S. 466 (2000),


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50298

and Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151 (2013). As he
concedes, however, the argument is foreclosed. See United States v. Pineda-
Arrellano, 492 F.3d 624, 625 (5th Cir. 2007); see also United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014).
        For the first time on appeal, Cruz contends that the district court erred
in assessing six criminal history points for his 2005 Texas convictions for
aggravated robbery and cocaine possession. His failure to object to the alleged
error in his criminal history score results in review for plain error only. See
United States v Soza, 874 F.3d 884, 889 (5th Cir. 2017). To prevail on plain
error review, Cruz must demonstrate (1) a forfeited error, (2) that is clear or
obvious, rather than subject to reasonable dispute, and (3) that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he satisfies the first three requirements, this court may, in its discretion,
remedy the error if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks and citation
omitted).
        According to Cruz, the PSR shows that the sentences for his aggravated
robbery and cocaine possession convictions were imposed on the same day, the
offenses were not separated by an intervening arrest, and they should have
been treated as a single sentence under U.S.S.G. § 4A1.2(a)(2).               He
acknowledges that the PSR lists the arrest date for his aggravated robbery as
April 12, 2005, and lists the arrest date for his cocaine possession as April 21,
2005, but he urges that the factual recitation regarding his cocaine possession
offense demonstrates that he was in fact arrested for both offenses on April 21,
2005.
        Even if the issue were reviewable, Cruz has failed to carry his burden of
demonstrating clear or obvious error. See Puckett, 556 U.S. at 135. Cruz has



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                                  No. 17-50298

not attempted to supplement the record with his arrest records, and he has not
presented any evidence to show that his aggravated robbery and cocaine
possession offenses were separated by an intervening arrest. He has thus
demonstrated only a potential discrepancy between the date listed for his
arrest for aggravated robbery and the factual recitation of events surrounding
his arrest for cocaine possession. The question is subject to reasonable dispute
and therefore does not establish clear or obvious error. See Puckett, 556 U.S.
at 13.
         Accordingly, the district court’s judgment is AFFIRMED.




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