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

                                                FILED
                                                                February 18, 2009
                                No. 08-40314
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

FELIX CANTU-ONTIVEROS

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 7:07-CR-183-1


Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Felix Cantu-Ontiveros (Cantu) pleaded guilty, pursuant to a plea
agreement, to being found in the United States following deportation and to
transporting an illegal alien. The presentence investigation report (PSR) treated
the two counts of Cantu’s conviction as separate groups under the multiple-count
provisions of U.S.S.G. §§ 3D1.1-3D1.4 (2006), resulting in a higher combined
offense level and, therefore, a higher guidelines range of imprisonment. At



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-40314

sentencing, the district court granted the government’s U.S.S.G. § 5K1.1 motion
for a downward departure and sentenced Cantu below the guidelines range to
51 months of imprisonment.
      On appeal, Cantu argues that the district court erred by treating the two
counts of his conviction as not closely related and, therefore, as separate groups
requiring application of the combined offense level provision. See §§ 3D1.2,
3D1.4. He asserts that, had the district court treated the two counts as related
and not as separate groups, it would have calculated a lower guidelines range
of imprisonment and departed by the same degree from that range to a lower
sentence of imprisonment.
      The PSR, which Cantu confirmed was factually correct, shows that
Cantu’s parents, his ex-spouse, his son, and an individual with whom he had a
common-law relationship until the date of his arrest live in the United States.
Cantu spent the majority of his youth in the United States, went to school
primarily in the United States, and was employed primarily in the United States
in the 12 years preceding his arrest. Cantu was deported in October 2006, but
reentered illegally in December 2006. In the weeks preceding his arrest in
February 2007, Cantu was working with a construction company in Texas. On
his way to that job on the morning of his arrest, Cantu stated that he saw a
friend guiding two aliens. The friend asked Cantu if he would drive the aliens
to the nearest store, which Cantu agreed to do. He was then stopped with the
aliens and arrested.
      Cantu’s familial network in the United States, his reentry months prior
to the alien-transportation offense, and the fact that Cantu had a daily job to
which he was en route at the time of his arrest, all indicate that transporting
illegal aliens was not the objective of Cantu’s illegal reentry. Cantu agreed to
transport the aliens, by his own account, on the spur of the moment when he saw
his friend. Therefore, the action could not have been part of his plan when he
illegally reentered the United States several months earlier. Cf. United States

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                                 No. 08-40314

v. Lopez-Urbina, 434 F.3d 750, 764 (5th Cir. 2005) (determining that a
conspiracy to use a firearm during the commission of a carjacking and the
carjacking itself were part of the same criminal scheme). Because the two
counts, Cantu’s illegal presence in the United States and his transport of the
aliens, were not part of a common scheme or plan, they were not closely related.
See § 3D1.2(b). Cantu has not shown that the district court erred in treating the
two counts of his conviction as separate groups for sentencing purposes. See
§ 3D1.2. Thus, Cantu has shown no error in the calculation of his guidelines
range and the resulting sentence.
      AFFIRMED.




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