United States v. Barrera-Telles ( 2022 )

Case: 22-10196 Document: 00516464591 Page: 1 Date Filed: 09/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 8, 2022
No. 22-10196
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jorge Luis Barrera-Telles,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:21-CR-104-1
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Jorge Barrera-Telles was sentenced, under 8 U.S.C. § 1326(b)(1), to
eighteen months’ imprisonment and three years’ supervised release (“SR”)
for illegally reentering in violation of § 1326(a). Barrera-Telles contends that
the district court erred in imposing a term of SR exceeding one year.
*
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opinion should not be published and is not precedent except under the limited circum-
stances set forth in 5th Circuit Rule 47.5.4.
Case: 22-10196 Document: 00516464591 Page: 2 Date Filed: 09/08/2022
No. 22-10196
Because Barrera-Telles did not object in the district court to the appli-
cation of § 1326(b)(1), we review for plain error only. See United States v.
Rodriguez-Flores, 25 F.4th 385, 387 (5th Cir. 2022). For that, the appellant
must show, inter alia, a forfeited error that is clear or obvious and that affects
his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009).
Illegally reentering the United States after removal ordinarily carries
a two-year maximum imprisonment under § 1326(a) and a one-year maxi-
mum SR. See 18 U.S.C. §§ 3559(a)(5), 3583(b)(3). But, if the defendant was
previously removed after a felony conviction, the maximum prison sentence
is ten years under § 1326(b)(1), and the maximum SR is three years. See
§§ 3559(a)(3), 3583(b)(2).
Although Barrera-Telles now maintains that nothing in the record
establishes that he was convicted of a felony before his prior removal, we have
permitted, on plain-error review, supplementation of the record with docu-
ments supporting a sentencing enhancement. See United States v. Vargas-
Soto, 700 F.3d 180, 183 (5th Cir. 2012). The government supplemented the
record with documents establishing that, before his prior removal, Barrera-
Telles was convicted of transporting a controlled substance in violation of
California Health and Safety Code § 11352(a). Because a § 11352(a) convic-
tion is punishable by more than one year of imprisonment, it qualifies as a
felony for purposes of § 1326(b)(1). See § 3559(a)(5)–(6); United States v.
Villegas-Hernandez, 468 F.3d 874, 884 (5th Cir. 2006) (holding that a felony
is an offense that is punishable by more than one year of imprisonment),
overruled in part on other grounds by United States v. Reyes-Contreras, 910 F.3d
169, 181–82 (5th Cir. 2018) (en banc). Thus, the district court did not plainly
err in sentencing Barrera-Telles to three years of SR. See Puckett, 556 U.S.
at 135.
AFFIRMED.
2