United States v. Camacho-Gonzalez ( 2021 )

Case: 20-50810 Document: 00515883363 Page: 1 Date Filed: 06/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 2, 2021
No. 20-50810 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Raul Camacho-Gonzalez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-81-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Raul Camacho-Gonzalez appeals the sentence imposed following his
guilty plea conviction for possession of a firearm by an alien, in violation of
18 U.S.C. §§ 922(g)(5) and 924(a)(2), and illegal reentry into the United
States following removal, in violation of 8 U.S.C. § 1326(a) and (b)(2).
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-50810
Camacho-Gonzalez asserts that the district court incorrectly calculated his
criminal history score when it assessed two criminal history points, rather
than just one, for his 2016 sentence to time served. He contends that the
presentence report contained insufficient evidence to show that he served at
least 60 days in prison before he was removed from the United States. The
Government was granted leave to supplement the record on appeal with
court documents from Camacho-Gonzalez’s 2012 and 2016 convictions.
As Camacho-Gonzalez concedes, he failed to object in the district
court to the assessment of two criminal history points for his 2016 sentence.
Thus, we review his challenge under the plain-error standard. See United
States v. Wikkerink, 841 F.3d 327, 331 (5th Cir. 2016). To satisfy that
standard, Camacho-Gonzalez must show a (1) forfeited error (2) that is clear
or obvious and (3) affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion
to correct the error but only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (alteration in original)
(internal quotation marks and citation omitted). Because the relevant issue
is “whether there is plain error at the time of appellate consideration,” we
consider the record as supplemented on appeal. Wikkerink, 841 F.3d at 332
(internal quotation marks and citation omitted).
Camacho-Gonzalez’s argument is belied by the supplemented record
on appeal. As the Government correctly contends, the record shows that
Camacho-Gonzalez was in pretrial custody from February 9, 2016, to July 20,
2016, well over 60 days, before he was sentenced to time served and removed
from the United States. His pretrial custody, which was credited as time
served by the district court at sentencing, qualifies as a “sentence of
imprisonment” for purposes of assigning criminal history points under
U.S.S.G. § 4A1.1(b). See United States v. Fernandez, 743 F.3d 453, 456-57
(5th Cir. 2014); see also U.S.S.G. § 4A1.2, comment. (n.2). Finally, the
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No. 20-50810
record was unambiguous as to his pretrial custody being fully credited to the
2016 conviction and not a different offense. Cf. United States v. Carlile, 884
F.3d 554, 558 (5th Cir. 2018). Accordingly, the district court did not plainly
err in assessing two criminal history points for Camacho-Gonzalez’s 2016
sentence to time served. See Puckett, 556 U.S. at 135.
AFFIRMED.
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