     Case: 18-40475      Document: 00514974962         Page: 1    Date Filed: 05/29/2019




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

                                                                                  FILED
                                      No. 18-40475                            May 29, 2019
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


               Plaintiff - Appellee

v.

CARLOS ALBERTO VEGA-RUIZ,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:17-CR-831-1


Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
         Carlos Alberto Vega-Ruiz appeals the district court’s thirty-month
sentence imposed on his conviction of being found unlawfully present in the
United States after deportation.          Because we conclude that imposing the
sentence did not constitute plain error, we affirm the judgment of the district
court.




         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. 18-40475
                                       I.
      On July 24, 2017, Carlos Alberto Vega-Ruiz was arrested by agents with
the United States Bureau of Customs and Border Protection (CBP). The arrest
came after CBP agents observed Vega-Ruiz and two other subjects lying on the
ground near three marijuana bundles along the northeast side of the
Brownsville Landfill. Vega-Ruiz admitted to being a Mexican citizen without
documentation that would allow him to be in the United States. Following his
arrest, Vega-Ruiz was taken to the Cameron County Jail, and an immigration
detainer was lodged against him.
      Federal authorities declined to prosecute Vega-Ruiz for a drug
trafficking offense. However, based on the above incident, Vega-Ruiz was
convicted in state court of possession of marijuana. On October 25, 2017, Vega-
Ruiz was sentenced in state court to five years of imprisonment on the
marijuana possession offense, with the sentence of imprisonment suspended
in favor of five years of community supervision.
      On November 21, 2017, after being notified that Vega-Ruiz was
scheduled to be released, Immigration and Customs Enforcement (ICE) agents
came to the jail and took him into custody. Under questioning, Vega-Ruiz
admitted to ICE agents that he was a citizen of Mexico and that he had no
documentation to be present legally in the United States. Additionally, “Vega-
Ruiz stated he illegally entered the United States on July 24, 2017, after he
crossed the Rio Grande River near Brownsville.” A records check showed that
Vega-Ruiz had previously been removed from the United States.
      Vega-Ruiz was then indicted on a charge that, on November 21, 2017, he
had been unlawfully present in the United States after removal under 8 U.S.C.
§ 1326. Vega-Ruiz pleaded guilty, admitting that he had previously been
deported or removed from the United States on December 20, 2006, after
having been convicted of the felony offense of burglary of a habitation.
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                                    No. 18-40475
      The probation officer determined that Vega-Ruiz’s base offense level
should be increased by eight levels due to the burglary conviction and by an
additional   four    levels     under   United     States   Sentencing         Guidelines
§ 2L1.2(b)(3)(D) due to the marijuana possession conviction. A three-level
reduction for acceptance of responsibility resulted in a total offense level of
seventeen. The probation officer assigned three criminal history points for the
sentence on the burglary offense and one criminal history point for the
sentence on the marijuana possession offense; the total of four points was just
enough to place Vega-Ruiz in criminal history category III.                   Vega-Ruiz’s
Guidelines range was thirty to thirty-seven months of imprisonment. Vega-
Ruiz did not object to any aspect of the PSR, and the district court adopted it.
At sentencing, Vega-Ruiz explained through his counsel that: “In crossing the
river, basically, since he did not have money for the fee, he was asked to go
with a group of people that they had bundles of marijuana.”
      The    district   court    sentenced      Vega-Ruiz      to    thirty   months     of
imprisonment. Vega-Ruiz has timely appealed.
                                         II.
      Vega-Ruiz contends that the district court erred by imposing a criminal
history point to the sentence based on his marijuana possession conviction. He
argues that the marijuana possession conviction was part of his unlawful
presence offense and, as such, that sentence does not qualify as a “prior
sentence.” Thus, he maintains that the district court erred in increasing his
offense level and his criminal history category on account of the marijuana
possession conviction.
                                         III.
      Respecting the standard of review that applies to Vega-Ruiz’s appeal:
Generally, this court reviews the district court’s interpretation or application
of the Guidelines de novo and its factual findings for clear error. United States
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                                       No. 18-40475
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Vega-Ruiz, however,
failed to object to the alleged errors in the determination of his criminal history
score and his offense level results below. So we review for plain error only. See
United States v. Soza, 874 F.3d 884, 889 (5th Cir. 2017).
       Thus, Vega-Ruiz 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). “Questions of fact capable of resolution by the district court upon
proper objection at sentencing can never constitute plain error.” United States
v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). 1
                                             IV.
       Now, for the substance of Vegas-Ruiz’s appeal: Under the unlawful
presence guideline, a defendant’s base offense level is increased on account of
prior convictions. See § 2L1.2(b). The relevant commentary instructs us,
however, to “use only those convictions that receive criminal history points
under § 4A1.1(a), (b), or (c).” § 2L1.2 cmt. n.3. Thus, in the instant matter,



       1  The government contends that Vega-Ruiz’s argument implicates a question of fact,
and thus, under Lopez, the district court’s decision cannot be plain error. There is some
support for this argument. See United States v. Nevels, 160 F.3d 226, 229 (5th Cir. 1998)
(“The district court’s determination of what constitutes relevant conduct for sentencing
purposes is a factual finding.” (citing United States v. Peterson, 101 F.3d 375, 384 (5th Cir.
1996))); but see United States v. Campo-Ramirez, 379 F. App’x 405, 408 (5th Cir. 2010) (an
error “is legal error, capable of resolution on plain error review” when “there was no error in
the district court’s (PSR’s) recitation of the factual circumstances” but instead “[t]he error
came later, when the district court . . . applied the guidelines to those circumstances to
compute [the defendant’s] criminal history score”). Nevertheless, for the purposes of this
appeal, we will accept Vega-Ruiz’s view that whether his marijuana conviction is not
“relevant conduct” to his immigration offense is a legal question.
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                                  No. 18-40475
whether the district court reversibly erred, either in its determination of Vega-
Ruiz’s offense level or his criminal history category, depends on whether Vega-
Ruiz has established plain error in the assignment of a criminal history point
for the marijuana conviction.
      Under the Guidelines, a “prior sentence” is “any sentence previously
imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo
contendere, for conduct not part of the instant offense.” See § 4A1.2(a)(1).
Whether the conduct is part of the instant offense is determined with reference
to the relevant conduct provisions of § 1B1.3. See § 4A1.2 cmt. n.1. As the
commentary states:
      A sentence imposed after the defendant’s commencement of the
      instant offense, but prior to sentencing on the instant offense, is a
      prior sentence if it was for conduct other than conduct that was
      part of the instant offense. Conduct that is part of the instant
      offense means conduct that is relevant conduct to the instant
      offense under the provisions of § 1B1.3 (Relevant Conduct).
§ 4A1.2 cmt. n.1; see also United States v. Yerena-Magana, 478 F.3d 683, 687–
88 (5th Cir. 2007) (discussing the relationship between § 4A1.2 and § 1B1.3).
      The Guidelines state that relevant conduct includes “all acts and
omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant,” as long as those actions
“occurred during the commission of the offense of conviction, in preparation for
that offense, or in the course of attempting to avoid detection or responsibility
for that offense.” § 1B1.3(a)(1)(A).
      Relying on this definition, Vega-Ruiz argues that his marijuana
possession conviction was not a “prior sentence” that can be used to enhance
his current sentence under the Guidelines.        Instead, he argues that the
marijuana possession conviction qualifies only as relevant conduct, because
the offense was committed “during” and “in preparation for” his unlawful

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                                 No. 18-40475
presence offense. To support this contention, Vega-Ruiz directs us to our
decision in United States v. Henry, 288 F.3d 657 (5th Cir. 2002). In that case,
on plain error review, we vacated the defendant’s sentence based on a
determination that the district court had plainly erred by including criminal
history points where the defendant’s “state conviction for criminal trespass and
federal conviction for possession of a firearm while under a restraining order
clearly resulted from the same conduct on November 14, 1998.” Id. at 665.
Vega-Ruiz argues that the marijuana possession was relevant conduct
because, as in Henry, the conduct underlying his prior sentence was
“simultaneous and interdependent” with the charged conduct.
      An “alien is ‘found in’ the United States when his physical presence is
discovered and noted by the immigration authorities, and the knowledge of the
illegality of his presence, through the exercise of diligence typical of law
enforcement authorities, can reasonably be attributed to immigration
authorities.” United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.
1996). The PSR shows that, upon being found in possession of the marijuana,
Vega-Ruiz “admitted being a citizen and national of Mexico without
documentation to be present in the United States.” The PSR also reveals that,
following the above admission, Vega-Ruiz was arrested and transported to the
jail, and that an immigration detainer was placed against him. Given these
facts, it is clear that Vega-Ruiz was “found in” the United States for purposes
of § 1326(a) on July 24, 2017, at essentially the same time that he was
discovered in possession of marijuana by CBP agents and admitted that he was
not authorized to be in the United States. See United States v. Gunera, 479
F.3d 373, 377 (5th Cir. 2007) (holding that knowledge of alien’s unlawful
presence by an immigration “processing unit without investigatory functions”
was attributable to the immigration agency as a whole).


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                                  No. 18-40475
      This court, however, has held that a crime committed by an alien at the
same time that he is unlawfully present in the United States is not necessarily
relevant conduct to the unlawful presence offense. In United States v. Vargas-
Garcia, we reviewed for plain error a district court’s enhancement of an alien’s
sentence for unlawful presence based on a crime that the alien committed
while in the country illegally. 434 F.3d 345 (5th Cir. 2005). The defendant had
re-entered the country illegally at some unspecified point in time. He was
arrested by local police after he fled from a traffic stop. Id. at 346. Several
weeks later he was indicted on the illegal re-entry charge. Id. We rejected the
defendant’s argument that the traffic violation was committed “during” or “in
the course of attempting to avoid detection or responsibility for” the
defendant’s unlawful presence, despite noting that unlawful presence was a
continuing offense that did not end until the defendant was “found in” the
United States. Id. at 348–49. We held that “[i]t was not plain error . . . for the
district court to conclude that Vargas-Garcia’s evasion of and resistance to
arrest after a traffic stop weeks before his indictment for illegal reentry was a
separate prior offense because it could be seen as embodying . . . conduct
severable by time, place, and harmed societal interest.” Id. at 350. In United
States v. Yerena-Magana, we applied Vargas-Garcia to hold that a defendant’s
unlawful entry offense was not committed “in preparation for” his marijuana
possession offense, in part, because the crimes “harmed different societal
interests.” 478 F.3d 683, 688–89 (5th Cir. 2007).
      Considering Vargas-Garcia and Yerena-Magana, we cannot find that the
district court plainly erred by enhancing Vega-Ruiz’s sentence. Both cases held
that if two offenses “harmed different societal interests” the differing harms
could prevent a finding that the prior offense was relevant conduct to the
charged offense, and Yerena-Magana established that possession of marijuana
and unlawful presence harm different societal interests.           Regardless of
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                                 No. 18-40475
whether this consideration would be sufficient to uphold the district court had
the issue been properly preserved below, it is sufficient to do so in this
procedural posture, that is, plain error review.
                                       V.
      Consequently, we find that the district court did not plainly error by
enhancing Vega-Ruiz’s sentence for illegal re-entry on account of his earlier
state conviction for possession of marijuana. Accordingly, the sentence of the
district court is
                    AFFIRMED.




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