     Case: 10-41158     Document: 00511696727         Page: 1     Date Filed: 12/15/2011




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

                                                                            FILED
                                                                        December 15, 2011
                                     No. 10-41158
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee

v.

JOSE RAUL MARTINEZ ALVAREZ,

                                                  Defendant – Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:10-CR-434-1


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Jose Raul Martinez Alvarez (Martinez) appeals the 51-month sentence
imposed following his guilty plea conviction for illegal reentry of a deported
alien. He argues that the government failed to establish the length of the
sentence imposed for his prior Pennsylvania drug trafficking offense, and that
the district court committed reversible error in assessing an offense level
enhancement of 16 pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) and three criminal
history points pursuant to U.S.S.G §§ 4A1.1(a) and 4A1.2(e)(1).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41158   Document: 00511696727      Page: 2   Date Filed: 12/15/2011

                                  No. 10-41158

      This court reviews the district court’s factual findings for clear error and
conducts a de novo review of its application and interpretation of the Sentencing
Guidelines. United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). As the
government concedes, the district court’s finding as to the length of Martinez’s
prior drug trafficking offense in Pennsylvania is not supported by the record.
The record shows that the Pennsylvania court imposed a sentence of
“imprisonment of time served in the Allegheny County Jail” and “credit for time
spent in the Texas Jail from 3/16/96”; however, the record does not support the
court’s finding that Martinez remained in a Texas jail for 14 months from March
16, 1996, to June 4, 1997.
      We vacate the sentence imposed and remand for resentencing. In light of
this ruling, we decline to anticipate what evidence the government will
ultimately present at resentencing or how the district court will recalculate
Martinez’s guidelines range. We therefore express no opinion on whether a
sentence of “time served” imposed in a Pennsylvania court can be an aggregate
of the time Martinez spent in a Pennsylvania county jail and the time he spent
in a Texas jail for an unrelated offense.
      SENTENCE VACATED AND REMANDED.




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