     Case: 17-41110      Document: 00514764458         Page: 1    Date Filed: 12/17/2018




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

                                                                                FILED
                                      No. 17-41110                      December 17, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

FRANCISCO ALEMAN,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:16-CR-629-1


Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Francisco Aleman appeals the sentence imposed by
the district court following his guilty plea conviction. For the following reasons,
we affirm.
                          I. Facts & Procedural History
       Aleman pled guilty, pursuant to a plea agreement, to possession with
intent to distribute 100 kilograms or more of marijuana, in violation of 21


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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U.S.C. § 841(a)(1), (b)(1)(B). The plea agreement did not contain a waiver of
appeal. The presentence report (PSR) indicated that the offense occurred on
April 20, 2016, when border patrol agents observed six individuals carry
bundles across the Rio Grande River and approach a parked truck after
entering the United States. When agents approached, the individuals dropped
the bundles and fled. Aleman, who was driving the truck, attempted to drive
away but agents intercepted and arrested him. Agents ultimately determined
that the bundles contained a total of approximately 156.82 kilograms of
marijuana.
      On August 1, 2016, Aleman, who suffers from a variety of mental and
physical health issues, 1 moved for pretrial release on bond to seek medical
treatment. His motion for release was granted and he was released on August
3, 2016, on an unsecured $25,000 bond. The district court issued a warrant for
Aleman’s arrest on December 1, 2016, when he failed to appear in court for a
scheduled    pretrial    conference.    Investigators     with    the   Alamo     Police
Department found and arrested him eight months later on August 2, 2017.

      Aleman entered a guilty plea on August 3, 2017, attributing his
abscondence to his mental and physical illnesses. In calculating his guidelines
range, the PSR assessed a base offense level of 24 pursuant to U.S.S.G.
§ 2D1.1(c)(8) because Aleman was responsible for at least 100 but less than 400
kilograms of marijuana. Aleman received a total of two criminal history points,
including one point for a 2010 misdemeanor conviction under TEX. PENAL CODE
§ 38.02(d) for failure to identify as a fugitive from justice, for which he was
sentenced to 15 days in custody. His criminal history score of two corresponded
to a criminal history category of II. Aleman’s guidelines range was restricted



      1According to the record, Aleman suffers from cancer, HIV, and various other mental
and physical illnesses and ailments.
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to 60 to 71 months of imprisonment because his conviction carried a five-year
statutory   minimum       prison     term.   See    21       U.S.C.   § 841(b)(1)(B);
U.S.S.G. § 5G1.1(c)(2).

      Aleman filed objections to the PSR, including an objection to the criminal
history point assessed for his 2010 Texas misdemeanor conviction for failure
to identify as a fugitive from justice. The district court overruled Aleman’s
objections, adopted the PSR without change, and sentenced him to 60 months
of imprisonment and four years of supervised release. Aleman appealed.

                           II. Standard of Review
      “Where a defendant preserves error by objecting at sentencing, as
[Aleman] did here, the court’s findings of fact are reviewed for clear error [and]
its application of the Guidelines, de novo.” United States v. Mendez-Henriquez,
847 F.3d 214, 218 (5th Cir. 2017).
                                III. Discussion
      On appeal, Aleman argues that the district court erred by assessing a
criminal history point for his prior misdemeanor conviction of failure to
identify as a fugitive from justice under § 38.02(d). See TEX. PENAL CODE §
38.02(d)(2). The parties do not dispute the facts underlying Aleman’s previous
§ 38.02(d) offense—he had an outstanding arrest warrant when he was stopped
by a police officer who had lawfully detained him, and he gave a false name to
the officer in an attempt to avoid being apprehended. See TEX. PENAL CODE §
38.02(d)(2). He received a 15-day jail sentence for the misdemeanor conviction.
      Sentences for misdemeanor offenses are counted in calculating a
defendant’s criminal history score, except as provided in U.S.S.G. § 4A1.2(c)(1)
and (2). § 4A1.2(c); United States v. Reyes-Maya, 305 F.3d 362, 366 (5th Cir.
2002). Sentences for offenses listed under § 4A1.2(c)(1) and “offenses similar to
them, by whatever name they are known, are counted only if (A) the sentence

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was a term of probation of more than one year or a term of imprisonment of at
least thirty days, or (B) the prior offense was similar to an instant offense.” 2
§ 4A1.2(c)(1); accord Reyes-Maya, 305 F.3d at 366.
       Aleman’s specific argument here is that his misdemeanor conviction
under § 38.02(d) is similar to the exempted offense of providing “false
information to a police officer,” one of the listed offenses under § 4A1.2(c)(1),
and thus should not have been counted in the calculation of his criminal history
score. To determine whether a defendant’s prior offense is similar to an offense
listed in § 4A1.2(c)(1), this court uses an approach outlined in United States v.
Hardeman, 933 F.2d 278, 281 (5th Cir. 1991), which involves consideration of
the following factors:
       [i] a comparison of punishments imposed for the listed and unlisted
       offenses, [ii] the perceived seriousness of the offense as indicated
       by the level of punishment, [iii] the elements of the offense, [iv] the
       level of culpability involved, and [v] the degree to which the
       commission of the offense indicates a likelihood of recurring
       criminal conduct.

       This court’s opinion in Reyes-Maya instructs that a conviction under
§ 38.02 for failure to identify is similar to providing “false information to a
police officer” under § 4A1.2(c)(1) when the failure-to-identify offense involves
the “refus[al] to give [one’s] name, date of birth, or address” to an officer when
arrested. 305 F.3d at 367–68. In that case, the panel also determined that a
Texas conviction for criminal mischief was similar to the offense of disorderly


       2 The government includes in its appellate brief a discussion of whether Aleman’s §
38.02(d)(2) misdemeanor offense is not excludable under § 4A1.2(c)(1) because it is similar to
his “instant offense.” U.S.S.G. § 4A1.2(c)(1); see United States v. McDonald, 106 F.3d 1218,
1220 (5th Cir. 1997). The district court, however, did not address this issue as an alternative
basis for assessing the criminal history point. Aleman, likewise, does not brief the issue on
appeal. For these reasons, we decline to reach the issue here. See Reyes v. Manor Indep. Sch.
Dist., 850 F.3d 251, 256 (5th Cir. 2017) (“We do not consider issues brought for the first time
on appeal.”).

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conduct under § 4A1.2(c)(1). See id. at 366; see TEX. PENAL CODE § 28.03
(criminal mischief). There, the court noted that “[g]iven the similarity in
punishments between [Reyes-Maya’s] criminal mischief conviction and
disorderly conduct and that the small fine [he] received suggests low
culpability and low predictiveness of future criminal conduct, we believe that
the district court erred in not excluding this conviction from [his] criminal
history score.” Id. at 368.
      The issue in this case, however, is whether a failure-to-identify offense
is similar to providing “false information to a police officer” under § 4A1.2(c)(1)
when the failure-to-identify offense was a Class A misdemeanor that entailed
(1) the intentional use of a false name, rather than the mere refusal to give
identifying information and (2) the existence of an outstanding arrest warrant.
See § 38.02(b), (d)(2). A review of this court’s unpublished opinions suggests
that it is not. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006)
(“An unpublished opinion issued after January 1, 1996 is not controlling
precedent, but may be persuasive authority.”).
      In United States v. Arroyos-Fernandez, 286 F. App’x 881, 884–86 (5th
Cir. 2008), the prior conviction at issue was a misdemeanor conviction under
18 U.S.C. § 1028(a)(4) for possession of a false identification document with the
intent to use the document to defraud the United States. In that case, Arroyos-
Fernandez committed the offense when he showed Immigration and Customs
Enforcement agents a false driver’s license in an attempt to demonstrate that
he was in the United States legally. Id. at 884. This court evaluated whether
the § 1028(a)(4) conviction was similar to providing “false information to a
police officer” under § 4A1.2(c)(1). Id. at 885. We reasoned that the two
offenses were not similar. A § 1028(a)(4) violation required the calculated act
of obtaining a false document in advance of any confrontation with law


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enforcement, whereas a violation of § 38.02(b) 3 did not require such
forethought because that section could be violated merely by verbally giving
false identifying information to an officer spontaneously. Id. at 886. We
concluded that Arroyos-Fernandez’s § 1028(a)(4) conviction was not similar to
a § 38.02(b) offense and thus also not similar to providing “false information to
a police officer” under § 4A1.2(c)(1). Id.
       In United States v. Moreno, 460 F. App’x 317, 321 (5th Cir. 2012), we
distinguished Reyes-Maya’s determination that a Texas conviction for criminal
mischief was similar to the offense of disorderly conduct under § 4A1.2(c)(1).
See Reyes-Maya, 305 F.3d at 366. We noted that Moreno’s criminal mischief
conviction was a Class A misdemeanor, he was sentenced to 29 days of
imprisonment (as opposed to the $182.50 fine assessed for Reyes-Maya’s
criminal mischief conviction), and his offense involved between $500 and $1500
in property damage caused when he struck a vehicle’s door with a car jack.
Moreno, 460 F. App’x at 321.
       In United States v. DeLeon-Garcia, 119 F. App’x 605, 607 (5th Cir. 2004),
we similarly distinguished due to the lesser punishment assessed for Reyes-
Maya’s criminal mischief conviction ($182.50 fine) relative to the 20-day jail
sentence DeLeon-Garcia received for his criminal mischief conviction. We
further reasoned that the conduct underlying DeLeon-Garcia’s criminal
mischief offense, throwing a bottle through an automobile’s rear window while
it was being driven, entailed the destruction of property and endangering
another’s safety and reflected high culpability. Id. We concluded that DeLeon-




       3  For guidance on defining § 4A1.2(c)(1)’s generic offense of providing “false
information to a police officer,” this court looked to the elements and punishment range of a
failure-to-identify offense under § 38.02(b). Id. at 885–86. Thus, our analysis contemplated
that an offense under § 38.02(b) was similar to providing “false information to a police officer”
under § 4A1.2(c)(1). See id.
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Garcia’s criminal mischief conviction, when considered in the context of his
recent criminal history, further indicated a likelihood of recurring conduct. Id.
      Here, Aleman’s conviction under § 38.02(d)(2) was a Class A
misdemeanor and was therefore punishable by confinement in jail for up to one
year and/or a fine not to exceed $4,000. See § 38.02(d)(2); TEX. PENAL CODE
§ 12.21. Aleman’s actual sentence was 15 days of imprisonment, which was
greater than the $182.50 fines considered in Reyes-Maya, and less than but
close to the 20-day, 20-day, and 29-day jail sentences considered, respectively,
in Arroyos-Fernandez, DeLeon-Garcia, and Moreno. The elements of Aleman’s
§ 38.02(d)(2) offense make it more serious than those considered in Reyes-Maya
and Arroyos-Fernandez. This is because § 38.02(d)(2), in addition to requiring
the intentional giving of false identifying information, requires that the
perpetrator be a “fugitive from justice” based on an outstanding arrest
warrant. § 38.02(d)(2); see also § 38.01(5). Consideration of these factors
supports the conclusion that Aleman’s § 38.02(d)(2) offense is not similar to the
§ 4A1.2(c)(1) offense of providing false information to a police officer. See
Hardeman, 933 F.2d at 281.
      Aleman’s case is distinguishable from Reyes-Maya since Aleman did not
merely refuse to identify himself but instead gave a false name to a police
officer while a warrant was outstanding for his arrest. 305 F.3d at 367.
Moreover, Aleman’s § 38.02(d)(2) offense is only one of his attempts to evade
law enforcement to avoid being arrested for a crime he had previously
committed. His current offense involved yet another attempt to evade
authorities by attempting to flee near the border and followed by his
abscondence while on pretrial bail. Aleman’s repeated decisions to evade law
enforcement do not lend credence to the conclusion that his actions reveal a
“low predictiveness of future criminal conduct.” Reyes-Maya, 305 F.3d at 368.


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      In light of this analysis, we conclude that Aleman’s prior Texas
misdemeanor § 38.02(d)(2) offense of failure to identify as a fugitive from
justice is not similar to the offense of providing “false information to a police
officer” as listed under U.S.S.G. § 4A1.2(c)(1), and thus was not exempt under
this section of the guidelines from being used to calculate Aleman’s criminal
history score. The district court’s calculation of Aleman’s criminal history score
was correct.
                                IV. Conclusion
      For the foregoing reasons, Aleman’s sentence is affirmed.




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