     Case: 14-50445      Document: 00512923141         Page: 1    Date Filed: 02/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 14-50445                                    FILED
                                  Summary Calendar                           February 2, 2015
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE CARLOS GALLEGOS-HERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:13-CR-324


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jose Carlos Gallegos-Hernandez (Gallegos) appeals the 60-month
sentence imposed following his guilty plea conviction for conspiracy to possess
with the intent to distribute 500 grams or more of cocaine, in violation of 21
U.S.C. § 846. He contends that the district court erroneously denied him relief
under the safety valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2(a),




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50445    Document: 00512923141     Page: 2   Date Filed: 02/02/2015


                                  No. 14-50445

which would have enabled him to be sentenced without regard to the statutory
minimum.
       Gallegos indicates that he has abandoned the argument, raised below,
that the district court retained the discretion to apply the safety valve to cases
in which the defendant has more than one criminal history point, conceding
that any such argument is foreclosed. He nevertheless argues that the denial
of safety-valve relief in his case was error because the assessment of two
criminal history points for his 2006 illegal reentry conviction was
unreasonable, urging that the offense is essentially a petty misdemeanor and
that assigning two points for such offenses is “arbitrary and without a rational
foundation.” According to Gallegos, U.S.S.G. § 4A1.3 should apply in such
cases to avoid the injustice of overrepresenting the gravity of illegal reentry
offenses. He also argues, for the first time on appeal, that his prior illegal
reentry conviction was double counted under the Guidelines because it was
used both to increase his criminal history score and to deny him safety-valve
eligibility.
       As Gallegos concedes, the argument that district courts retain the
discretion to grant a downward departure under § 4A1.3 to render a defendant
with more than one criminal history point eligible for the safety valve is
foreclosed. See United States v. Solis, 675 F.3d 795 (5th Cir. 2012); United
States v. Jasso, 634 F.3d 305 (5th Cir. 2011). To the extent that he contends
that his sentence is unreasonable because his prior conviction was not serious,
the argument is similarly foreclosed. See United States v. Juarez-Duarte, 513
F.3d 204, 212 (5th Cir. 2008); United States v. Aguirre-Villa, 460 F.3d 681, 683
(5th Cir. 2006). Gallegos’s double-counting argument is likewise foreclosed.
See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).




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                                   No. 14-50445

      To the extent that Gallegos seeks to have this court overturn the prior
decision in Duarte, the argument is unavailing. One panel of this court may
not overrule the decision of a prior panel in the absence of an en banc decision
or a superseding Supreme Court decision. United States v. Lipscomb, 299 F.3d
303, 313 & n.34 (5th Cir. 2002).
      The Government has moved for summary affirmance in this case. As the
Government fails to address Gallegos’s argument challenging the assessment
of two criminal history points for a nonviolent illegal reentry offense, summary
affirmance is not appropriate, and the motion is DENIED. See United States
v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006).
Gallegos is not entitled to relief, however, and the district court’s judgment is
AFFIRMED. The Government’s alternative motion for an extension of time to
file an appellate brief is DENIED.




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