United States v. Gonzalez-Velasquez , 306 F. App'x 183 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 12, 2009
No. 08-10534
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANTONIO GONZALEZ-VELASQUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:08-CR-2-ALL
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Antonio Gonzalez-Velasquez (“Gonzalez”), a Mexican national, appeals the
80-month sentence he received following his guilty-plea conviction for being
found unlawfully in the United States after having been previously deported
following an aggravated felony conviction, in violation of 8 U.S.C. § 1326. For
the first time on appeal, Gonzalez challenges the calculation of his criminal
history score, arguing that he was incorrectly assessed a total of three criminal
history points for two June 1997 California convictions because those convictions
*
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should not be published and is not precedent except under the limited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. 08-10534
were stale. Gonzalez asserts that, because he received sentences of less than 13
months in both cases and because both sentences were imposed more than 10
years prior to his commission of the instant offense (which he asserts was in
August 2007, the date of his underlying arrest), the convictions could not be
counted under U.S.S.G. § 4A1.2(e).
As Gonzalez concedes, because he did not raise these arguments in the
district court, review is for plain error only. See United States v. Price, 516 F.3d
285, 286-87 (5th Cir. 2008). To demonstrate plain error, Gonzalez must show an
error that is clear or obvious and that affects his substantial rights. United
States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008). If he makes such a showing,
this court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.Gonzalez has failed to demonstrate any clear or obvious error in the
calculation of his criminal history score. Because being found in the United
States after having been previously deported is a continuing offense, the date of
the “commencement of the instant offense” for purposes of § 4A1.2(e) is the date
Gonzalez illegally entered the United States, not the date on which he was
arrested. See United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.
1996); see also § 4A1.2(e) & comment. (n.8); § 1B1.3(a)(1)(A). The presentence
report establishes that Gonzalez entered the United States illegally with his
common-law wife in April 2007. Thus, although he was not arrested until
August 2007, his offense “commenced” in April 2007, less than 10 years after his
June 1997 California convictions. Therefore, the June 1997 convictions were
properly counted under § 4A1.2(e). See § 4A1.2(e) & comment. (n.8);
§ 1B1.3(a)(1)(A).
The district court’s judgment is AFFIRMED.
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