     Case: 11-50376     Document: 00511716862         Page: 1     Date Filed: 01/06/2012




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

                                                                            FILED
                                                                          January 6, 2012
                                     No. 11-50376
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JERONIMO FABIAN-CAMINERO, also known as Geronimo Lara-Fabion, also
known as Felipe Fabian Caminero,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-165-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Following his guilty-plea conviction for illegal reentry, Jeronimo Fabian-
Caminero received a sentence of, inter alia, 27-months’ imprisonment. Fabian
contends the district court committed reversible plain error by imposing a 12-
level enhancement pursuant to Sentencing Guideline § 2L1.2(b)(1)(B) because
the sentence for his prior drug-trafficking conviction was suspended.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-50376    Document: 00511716862      Page: 2    Date Filed: 01/06/2012

                                  No. 11-50376

      Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the
Guidelines range for use in deciding on the sentence to impose. Gall v. United
States, 552 U.S. 38, 48-51 (2007). As Fabian concedes, because he raises this
issue for the first time on appeal, review is only for plain error. E.g., Puckett v.
United States, 129 S. Ct. 1423, 1428-29 (2009). To show reversible plain error,
Fabian must show a clear or obvious error that affects his substantial rights. Id.
at 1429. If Fabian makes that showing, our court has the discretion to correct
the error and generally will do so only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      The Guidelines provide that the offense level for unlawfully entering the
United States shall be increased by 12 levels if defendant was deported after “a
conviction for a felony drug trafficking offense for which the sentence imposed
was 13 months or less”. U.S.S.G. § 2L1.2(b)(1)(B). The suspended portion of a
sentence does not count as part of that sentence. U.S.S.G. § 4A1.2(b)(2); United
States v. Rodriguez-Parra, 581 F.3d 227, 229 (5th Cir. 2009). “To qualify as a
sentence of imprisonment, the defendant must have actually served a period of
imprisonment on such sentence”. Rodriguez-Parra, 581 F.3d at 229 (quoting
U.S.S.G. § 4A1.2 cmt. n.2) (emphasis omitted).
      The Government contends that, in pre-trial custody, Fabian “actually
served” five months of his prison sentence for drug trafficking.            Fabian
maintains the state court’s award of “potential” credit for time served was not
applied to his prison sentence because that sentence was suspended entirely in
favor of 18-months’ probation. The documentation of the sentence submitted
with the pre-sentence investigation report is ambiguous. Given that ambiguity,
the record is inconclusive for whether the district court committed error. Even
if the court did commit error, that error was not clear or obvious. Moreover, the
existence of a previously imposed sentence is a question of fact. E.g., United

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   Case: 11-50376   Document: 00511716862      Page: 3   Date Filed: 01/06/2012

                                  No. 11-50376

States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997) (length of prior
sentence for purpose of sentence enhancement a fact issue that must be proved
by preponderance of evidence). “[Q]uestions of fact capable of resolution by the
district court can never constitute plain error”. United States v. Chung, 261 F.3d
536, 539 (5th Cir. 2001) (citation and internal quotation marks omitted).
      AFFIRMED.




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