United States v. Cesar Hernandez ( 2018 )

Case: 17-11299 Document: 00514720603 Page: 1 Date Filed: 11/13/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-11299 November 13, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CESAR CARAPIA HERNANDEZ, also known as Javier Gangeno, also known
as Armando Granjeno, also known as Cesar Diaz Hernandez, also known as
Cesar Carapia-Hernandez, also known as Cesar Carapia-Ortega, also known
as Cesar Lopez-Diaz,
Defendant - Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-64-1
Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Caesar Carapia Hernandez pleaded guilty, without a plea agreement, to
illegal reentry after deportation, and he was sentenced above the Guidelines
to 36 months of imprisonment. No term of supervised release was imposed.
For the first time, Carapia Hernandez argues that the district court clearly
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-11299 Document: 00514720603 Page: 2 Date Filed: 11/13/2018
No. 17-11299
erred in sentencing him and entering judgment against him under 8 U.S.C.
§ 1326(b)(2), which sets the statutory maximum penalty at 20 years of
imprisonment for a defendant whose pre-removal conviction was for an
“aggravated felony.” § 1326(b)(2).
As the parties recognize, because Carapia Hernandez did not challenge
the application of § 1326(b)(2) in the district court, review is for plain error.
See Puckett v. United States, 556 U.S. 129, 135 (2009); see, e.g., United States
v. Medrano-Camarillo, 653 F. App’x 239, 240 (5th Cir. 2016) (applying plain
error review where the defendant did not challenge the entry of judgment
under § 1326(b)(2) in the district court).
We note that Carapia Hernandez does not argue that he did not have a
prior conviction for an aggravated felony as that term is defined for purposes
of the statutory maximum. Rather, citing United States v. Gamboa-Garcia,
620 F.3d 546, 548-49 (5th Cir. 2010), United States v. Piedra-Morales, 843 F.3d
623, 645-25 (5th Cir. 2016), cert. denied, 137 S. Ct. 1361 (2017), and other
cases, Carapia Hernandez argues that the district court was “bound” by the
judgment in his 2009 illegal reentry case in the Southern District of Texas,
which indicated that he was sentenced under the 10-year statutory maximum
of § 1326(b)(1). He contends that his sentence should be vacated and the case
remanded for resentencing or, alternatively, the judgment should be reformed
to reflect that he was convicted and sentenced under § 1326(b)(1).
We will not ordinarily find a plain error when we have not previously
addressed an issue. United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009).
“Even where the argument requires only extending authoritative precedent,
the failure of the district court to do so cannot be plain error.” Id. (internal
quotation marks and citation omitted); see also United States v. Lucas,
849 F.3d 638, 645 (5th Cir. 2017) (“An error is not plain under current law if a
2
Case: 17-11299 Document: 00514720603 Page: 3 Date Filed: 11/13/2018
No. 17-11299
defendant’s theory requires the extension of precedent.”) (internal quotation
marks and citation omitted).
Because the cases relied upon by Carapia Hernandez do not speak
directly to the issue presented here, Carapia Hernandez has not demonstrated
that the district court’s determination that he was subject to the statutory
maximum of § 1326(b)(2) constituted a clear or obvious error. He also has not
shown that his sentence was affected by a misunderstanding of the applicable
statutory maximum. See United States v. Mondragon-Santiago, 564 F.3d 357,
368-69 (5th Cir. 2009). The district court gave lengthy reasons for imposing
the sentence, noting, inter alia, that Carapia Hernandez had been removed
from the United States on 16 prior occasions and had not been deterred from
reentering the United States even after being sentenced to 20 months of
imprisonment. Moreover, the 36-month term of imprisonment imposed was
well below the 10-year statutory maximum of § 1326(b)(1) that Carapia
Hernandez argues the district court was bound to apply. Nothing in the record
suggests that the district court would have imposed a lesser sentence if a 10-
year statutory maximum applied.
For these reasons, Carapia Hernandez has not shown reversible plain
error. See Puckett, 556 U.S. at 135. Having found no clear or obvious error,
we decline to reform the judgment.
AFFIRMED.
3