United States v. Mendoza ( 2023 )

Case: 22-10826 Document: 00516673239 Page: 1 Date Filed: 03/10/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10826
Summary Calendar FILED
____________ March 10, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Reynaldo Mendoza,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:21-CR-58-9
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Reynaldo Mendoza appeals from the 135-month imprisonment
sentence imposed following his guilty plea conviction for conspiracy to
distribute and possess with intent to distribute 50 grams or more of
methamphetamine. He argues that, pursuant to U.S.S.G. § 5G1.3(b)(2), the
district court should have imposed his instant sentence to run concurrently
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-10826
with the undischarged terms of imprisonment for his three state offenses
because those state offenses constituted relevant conduct.
We review a district court’s interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). What
constitutes relevant conduct is a factual question subject to clear error
review. United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009). “A
factual finding is not clearly erroneous as long as it is plausible in light of the
record as a whole.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir.
2005) (internal quotation marks and citation omitted).
Pursuant to U.S.S.G. § 5G1.3(c), if “a state term of imprisonment is
anticipated to result from another offense that is relevant conduct to the
instant offense of conviction under the provisions of subsections (a)(1),
(a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct), the sentence for the instant
offense shall be imposed to run concurrently to the anticipated term of
imprisonment.” U.S.S.G. § 5G1.3(b)(2). Mendoza’s appellate argument
specifically relies on U.S.S.G. § 1B1.3(a)(2), which defines relevant conduct
as “solely with respect to offenses of a character for which § 3D1.2(d) would
require grouping of multiple counts, all acts and omissions described in
subdivisions (1)(A) and (1)(B) above that were part of the same course of
conduct or common scheme or plan as the offense of conviction.” Because
Mendoza does not argue that the state offenses qualify as part of a common
scheme or plan, he has abandoned that issue. See Cinel v. Connick, 15 F.3d
1338, 1345 (5th Cir. 1994).
The Government argues that Mendoza’s three state offenses could
not be considered relevant conduct because they consisted of burglary and
robbery offenses, which are non-groupable offenses for purposes of
§ 3D1.2(d). We need not address that argument because our review of “the
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Case: 22-10826 Document: 00516673239 Page: 3 Date Filed: 03/10/2023
No. 22-10826
degree of similarity of the offenses, the regularity (repetitions) of the
offenses, and the time interval between the offenses” shows that the district
court did not clearly err in finding that Mendoza’s state offenses were not
part of the same course of conduct as his federal offense of conviction.
§ 1B1.3, comment. (n.5(B)(ii)). Accordingly, § 5G1.3(b)(2) was not
applicable to Mendoza’s sentence.
The judgment of the district court is AFFIRMED.
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