     Case: 15-50238      Document: 00513414878         Page: 1    Date Filed: 03/10/2016




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

                                    No. 15-50238                                    FILED
                                  Summary Calendar                            March 10, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VICTOR GONZALEZ-VENEGAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:14-CR-258


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Victor Gonzalez-Venegas (Gonzalez) pleaded guilty
to being found in the United States after deportation in violation of 8 U.S.C. §
1326 and was sentenced to 27 months in prison, to be followed by a three-year
term of supervised release.         On appeal, he argues that the district court
misapplied the Sentencing Guidelines when it added two points 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 15-50238

history score under U.S.S.G. § 4A1.1(d) because he was no longer under his
sentence of probation for his 1998 New Mexico conviction.
      We review the district court’s interpretation and application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). Section 4A1.1(d) of the
Sentencing Guidelines provides that two points shall be added to a defendant’s
criminal history score “if the defendant committed the instant offense while
under any criminal justice sentence, including probation, parole, supervised
release, imprisonment, work release, or escape status.” § 4A1.1(d). The section
applies “if the defendant committed any part of the instant offense (i.e., any
relevant conduct) while under any criminal justice sentence, including
probation.” § 4A1.1, comment. (n.4). For purposes of § 4A1.1(d), a defendant
who commits the instant offense while a violation warrant from a prior
sentence is outstanding, e.g., a probation, parole, or supervised release
violation warrant, shall be deemed to be under a criminal justice sentence if
that sentence is otherwise countable, even if that sentence would have expired
absent the violation warrant.     U.S.S.G. § 4A1.2(m); see also § 4A1.1(d),
comment. (n. 4).
      According to the presentence report, Gonzalez was sentenced to nine
years in prison in May 1998, but the sentence was suspended and he was
placed on probation for five years. In October 1998, Gonzalez was deported.
On April 20, 1999, a revocation warrant was issued against Gonzalez, which
remained outstanding through Gonzalez’s return to the United States in
November 2003 and until he was convicted of the instant offense.
      Based on these facts, Gonzalez insists that § 4A1.1(d) and § 4A1.2(m)
should not apply to his case. He first argued that he should not be penalized
because the revocation warrant was based on his failure to appear following



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                                 No. 15-50238

the deportation, even though reporting to his probation officer would have been
impossible at that time. Following the government’s supplementation of the
record with documents relating to the revocation warrant, however, Gonzalez
conceded that the revocation warrant was based on his pre-revocation conduct
and withdrew this contention.
      Gonzalez also asserts that the six-month delay by the state of New
Mexico before issuing the revocation warrant and the 15-year pendency of the
warrant together show a lack of reasonable diligence and should render §
4A1.1(d) inapplicable. In United States v. Anderson, 184 F.3d 479 (5th Cir.
1999), we held that for purposes of determining whether § 4A1.1(d) requires
the inclusion of two criminal history points, “the Guidelines do not require us
to assess the state authorities’ diligence in executing a violation warrant.
Rather the two-point increase applies to any defendant who commits the
instant offense while a violation warrant from a prior sentence is outstanding.”
184 F.3d at 481 (internal quotation marks and citation omitted). Although
Gonzalez maintains that the delays constitute a due process violation, he
presents no binding authority overruling Anderson. One panel of this court
may not overrule a prior decision of another panel in the absence of an
intervening contrary or superseding decision by this court sitting en banc or by
the United States Supreme Court. United States v. Traxler, 764 F.3d 486, 489
(5th Cir. 2014).   Gonzalez has not shown that the district court erred in
imposing the criminal history points under § 4A1.1(d) and § 4A1.2(m). See
Caldwell, 448 F.3d at 290. The judgment of the district court is AFFIRMED.




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