     Case: 16-40228      Document: 00514018865         Page: 1    Date Filed: 06/05/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-40228                                FILED
                                  Summary Calendar                           June 5, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

NICOLAS FUENTES-CRUZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-811-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Nicolas Fuentes-Cruz was convicted on one count of being unlawfully
present in the United States after a prior removal subsequent to a felony
conviction and received a within-guidelines sentence of 57 months of
imprisonment and a three-year term of supervised release.
       Fuentes-Cruz first argues that the district court procedurally erred by
failing to adequately explain the chosen sentence and by failing to respond to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40228

his objection that the 57-month sentence was too long. Our review of this
unpreserved argument is for plain error. See United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To show plain error, Fuentes-Cruz
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes such a showing, we have the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      Fuentes-Cruz’s arguments that the district court procedurally erred by
failing to explain the sentence imposed and by failing to explicitly rule on his
objections are without merit. A full explanation of the 18 U.S.C. § 3553(a)
factors is not required in every case. Rita v. United States, 551 U.S. 338, 356
(2007). The district court need only “set forth enough to satisfy the appellate
court that he has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.” Id. We will instead
“focus on the district court’s statements in the context of the sentencing
proceeding as a whole.” United States v. Diaz Sanchez, 714 F.3d 289, 294 (5th
Cir. 2013). Before imposing the within-guidelines sentence, the district court
in this case explicitly adopted the PSR, listened to and overruled defense
counsel’s objections, and listened to defense counsel and Fuentes-Cruz’s
requests for a sentence on the low end of the guidelines range. It is clear from
a review of the sentencing transcript as a whole that the district court
considered all of the evidence before it, evaluated the parties’ sentencing
arguments, and had a reasoned basis for exercising its decisionmaking
authority.   See Rita, 551 U.S. at 356; Diaz Sanchez, 714 F.3d at 293-95.
Fuentes-Cruz has not demonstrated a clear or obvious error. Puckett, 556 U.S.
at 135.



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                                       No. 16-40228

       Fuentes-Cruz also argues that it was error to apply a 12-level drug
trafficking enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) because his prior
Oregon conviction for delivery of a controlled substance was not categorically
a controlled substance offense and that the modified categorical approach could
not be used to determine whether the prior offense so qualified because the
Oregon statute was not divisible. To support this argument, he relies on the
Supreme Court’s recent decision in Mathis v. United States, 136 S. Ct. 2243
(2016), and our decision applying Mathis in United States v. Hinkle, 832 F.3d
569 (5th Cir. 2016). Our review is once again for plain error. See United States
v. Garcia-Rodriguez, 415 F.3d 452, 456 & n.4 (5th Cir. 2005).
       Fuentes-Cruz has not demonstrated a clear or obvious error. When
determining “whether an error is clear or obvious we look to the state of the
law at the time of appeal,” and then determine “whether controlling circuit or
Supreme Court precedent has reached the issue in question, or whether the
legal question would be subject to reasonable dispute.” United States v. Fields,
777 F.3d 799, 802 (5th Cir. 2015) (internal quotation marks and footnotes
omitted). Because neither the Supreme Court nor our court has addressed
whether, after Mathis, an Oregon conviction for delivery of a controlled
substance is a drug trafficking offense under § 2L1.2(b)(1)(A), Fuentes-Cruz’s
claim is subject to reasonable dispute and cannot be a clear or obvious error. 1
Fields, 777 F.3d at 802; see also Puckett, 556 U.S. at 135.
       AFFIRMED.




       1 Although not precedential, we note our opinion in United States v. Salamanca-Rosas,
342 F. App’x 38, 40-41 (5th Cir. 2009), wherein we concluded that the language supporting a
conviction for delivery under the Oregon statute did not include conduct that fell outside the
definition of a drug trafficking offense under § 2L1.2 and its application notes.


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