United States v. William Vivar-Lopez ( 2019 )

Case: 19-40351 Document: 00515246134 Page: 1 Date Filed: 12/20/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-40351 December 20, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
WILLIAM GEOVANI VIVAR-LOPEZ,
Defendant−Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 1:18-CR-713-1
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
William Vivar-Lopez appeals his 30-month, below-guidelines sentence
for illegal reentry. He contends that the district court erred by considering
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40351 Document: 00515246134 Page: 2 Date Filed: 12/20/2019
No. 19-40351
Application Note 3 of U.S.S.G. § 2L1.2, which indicates that if a defendant re-
ceives offense-level enhancements for prior convictions under § 2L1.2(b), those
prior convictions may garner criminal history points under U.S.S.G. § 4A1.1.
Vivar-Lopez urges that, in light of Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the
court should have given no deference to the commentary because the language
of § 2L1.2 is unambiguous. In addition, Vivar-Lopez maintains that because
§ 2L1.2 is the guideline that specifically addresses illegal-reentry offenses, the
court should not have applied criminal history points per § 4A1.1 for offenses
that resulted in offense level enhancements under § 2L1.2(b).
As Vivar-Lopez concedes, we review for plain error, so he must show, as
the first requirement, a forfeited error that is clear or obvious. See Puckett v.
United States, 556 U.S. 129, 135 (2009). Kisor addressed the continuing via-
bility of deference to an agency’s interpretations of its own regulations under
Auer v. Robbins, 519 U.S. 452 (1997). The Court in Kisor did not overrule Auer
deference but merely restated the limitations on applying deference to an
agency’s interpretations. Kisor, 139 S. Ct. at 2415−16, 2423. Kisor did not
address the Sentencing Guidelines or the caselaw holding that the commen-
tary to the Guidelines is authoritative unless it violates federal law or the Con-
stitution, it is inconsistent with the Guideline being interpreted, or it consti-
tutes a plainly erroneous reading of the Guideline. See Stinson v. United
States, 508 U.S. 36, 38 (1993).
Because there is no caselaw from the Supreme Court or this court ad-
dressing the effect of Kisor on the Sentencing Guidelines in general or on Appli-
cation Note 3 of § 2L1.2 in particular, there is no clear or obvious error. See
United States v. Escalante-Reyes, 689 F.3d 415, 418 (5th Cir. 2012) (en banc);
United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015).
AFFIRMED.
2