United States v. Sergio Sustaita-Mata ( 2018 )

Case: 17-40863 Document: 00514529214 Page: 1 Date Filed: 06/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-40863
Fifth Circuit
FILED
Summary Calendar June 26, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
SERGIO SUSTAITA-MATA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:17-CR-451-1
Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM: *
Sergio Sustaita-Mata appeals the 71-month sentence imposed on his
guilty plea conviction for illegal reentry. See 8 U.S.C. § 1326. Reviewing for
plain error, we affirm. See Puckett v. United States, 556 U.S. 129, 135-36
(2009); United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en
banc).
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. 17-40863
We reject the unpreserved claim that the district court’s criminal history
score was erroneous because the court failed to treat two theft sentences as a
single sentence under U.S.S.G. § 4A1.1(c), placing Sustaita-Mata in a higher
criminal history category and thus in a higher guidelines sentencing range.
See Puckett, 556 U.S. at 135-36. Sustaita-Mata has not established error that
is clear or obvious. Id. at 135.
Criminal history points, which determine the criminal history category
used to calculate the guidelines range, may be assessed for a defendant’s prior
sentences. See § 4A1.1; U.S.S.G. § 4A1.2. Multiple prior sentences “always are
counted separately if the sentences were imposed for offenses that were
separated by an intervening arrest (i.e., the defendant is arrested for the first
offense prior to committing the second offense).” § 4A1.2(a)(2). But if “no
intervening arrest” occurred, prior sentences are counted as a single sentence
if, inter alia, “the sentences were imposed on the same day.” § 4A1.2(a)(2).
Although Sustaita-Mata is correct that his theft offenses were not
separated by an intervening arrest, he cites no circuit precedent supporting his
correlative contention that the sentences were imposed on the same day and
thus should have together garnered only one criminal history point under
§ 4A1.1(c) and § 4A1.2(a)(2). See United States v. Carlile, 884 F.3d 554, 558
(5th Cir. 2018). Nor does he show that the dispute before us is settled by a
straightforward application of the Guidelines. See United States v. Blocker,
612 F.3d 413, 416 (5th Cir. 2010), abrogation on other grounds recognized in
United States v. Martinez-Rodriguez, 821 F.3d 659, 664 (5th Cir. 2016). At
best, Sustaita-Mata makes an argument not unreasonably disputed by the
Government, which points to the later revocation sentence involving one of the
theft convictions. See Puckett, 556 U.S. at 135; United States v. Ellis, 564 F.3d
370, 377-78 (5th Cir. 2009). And even if Sustaita-Mata is correct that there
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Case: 17-40863 Document: 00514529214 Page: 3 Date Filed: 06/26/2018
No. 17-40863
was error, we conclude “that, absent direction from [this] court or a timely
objection from the defendant, the district court could have reasonably
interpreted” the Guidelines at issue as it did. Carlile, 884 F.3d at 558.
AFFIRMED.
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