United States v. Aparicio-Moreira , 333 F. App'x 877 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 19, 2009
No. 09-40055
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELVIN APARICIO-MOREIRA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 2:08-CR-623-ALL
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Elvin Aparicio-Moreira appeals the 41-month sentence imposed following
his plea of guilty of illegal reentry into the United States following removal.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 09-40055
Aparicio-Moreira challenges the district court’s characterization of his prior Tex-
as state conviction of unauthorized use of a motor vehicle (“UUMV”) as an aggra-
vated felony. In United States v. Armendariz-Moreno, 571 F.3d 490, 491 (5th Cir
2009) (per curiam), we determined that the offense of UUMV does not involve
violent and aggressive conduct and, as a result, is not an aggravated felony. Un-
der that precedent, the district court erred in imposing the eight-level sentencing
enhancement.
Despite the error, reversal is not required. In United States v. Bonilla, 524
F.3d 647, 655-57 (5th Cir. 2008), cert. denied, 129 S. Ct. 904 (2009), this court de-
termined that the district court had erred in applying the sentencing guidelines,
but we decided that “[n]ot all errors in determining a defendant’s guideline sen-
tence require reversal.” We affirmed, reasoning that “because the district court
imposed an alternative non-guidelines sentence, the advisory sentence did not
result from the guidelines error and we need not vacate the sentence on that ba-
sis.” Id. at 659.
In the instant case, the district court made it plain that it would have im-
posed the same sentence even if the sentencing enhancement had been inapplic-
able. The district court’s comments reflect that, like the district court in Bonilla,
it imposed an alternative non-guideline sentence. Moreover, the reasons given
for the non-guideline sentence are adequate. See United States v. Mares, 402
F.3d 511, 519-20 (5th Cir. 2005).
Aparicio-Moreira argues that the district court erred in calculating his
criminal history score. Although the government concedes that it was error to
assess two points for Aparicio-Moreira’s 1998 conviction of burglary of a vehicle,
the government contends that Aparicio-Moreira has not shown plain error.
Because Aparicio-Moreira failed to object to the calculation of his criminal
history score, review is for plain error. See United States v. Cruz-Meza, 310 F.
App’x 634, 636 (5th Cir. 2009), cert. denied, 2009 U.S. LEXIS 5363 (U.S. Oct. 5,
2009); United States v. Villegas, 404 F.3d 355, 358-59 (5th Cir. 2005). Aparicio-
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No. 09-40055
Moreira has not shown that the court plainly erred in calculating his criminal
history score, because he has not demonstrated that the error affected his sub-
stantial rights. See Cruz-Meza, 310 F. App’x at 636; Villegas, 404 F.3d at 364.
AFFIRMED.
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