     Case: 09-20517     Document: 00511231403          Page: 1    Date Filed: 09/13/2010




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

                                                 FILED
                                                                        September 13, 2010
                                     No. 09-20517
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JORGE GONZALEZ-VILLEGAS, also known as Jorge Villegas Gonzalez, also
known as Federico Sanchez Benitez, also known as Jorge Villegas Gonzales,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-161-1


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jorge Gonzalez-Villegas (Gonzalez) appeals the 46-month sentence
imposed following his guilty-plea conviction for illegal reentry. Gonzalez argues
that the district court erroneously calculated his criminal history score by
assigning points to two expired convictions which should not have been
considered under the Guidelines. Gonzalez contends that he should have been
placed in category III rather than category IV with respect to his criminal


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20517    Document: 00511231403 Page: 2        Date Filed: 09/13/2010
                                 No. 09-20517

history score and that his guidelines range should have been 46-57 months.
Gonzalez further argues that the error is not harmless because the court
downwardly departed and would likely have departed to a category II criminal
history score if the guidelines range had been properly calculated.
      The Government argues that there is no relief available to Gonzalez on
appeal. The Government notes that Gonzalez’s written objections regarding his
criminal history score were sustained by the district court and Gonzalez’s
guidelines range was recalculated with a category III criminal history score.
Gonzalez did not file a reply brief.
      A review of the record indicates that the district court granted the relief
which Gonzalez now seeks. The district court agreed with Gonzalez at the
sentencing hearing that a 1997 reentry date could not be used as the date the
instant offense was committed.         Therefore, the two criminal history points
associated with 1990 and 1991 convictions and two additional criminal history
points assigned under U.S.S.G. § 4A1.1(d) were not counted. The district court
adopted the presentence report as modified with a criminal history category III
and noted that the guidelines range was 46-57 months. Gonzalez’s request for
a downward departure was explicitly rejected by the district court. The district
court imposed a sentence within the guidelines range and commented that the
sentence accomplished the objectives of 18 U.S.C. § 3553(a).
      The error of which Gonzalez now complains was resolved in his favor by
the district court. His appeal is wholly without merit and frivolous and therefore
is dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5 TH C IR. R. 42.2. Further, counsel is warned that the filing of an appeal
raising a frivolous issue is a needless waste of resources and could result in the
imposition of sanctions. See United States v. Gaitan, 171 F.3d 222, 223-24 (5th
Cir. 1999).
      APPEAL DISMISSED; SANCTION WARNING ISSUED.



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