United States v. Gonzales De Morales ( 2010 )

Case: 10-40065 Document: 00511254955 Page: 1 Date Filed: 10/06/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 6, 2010
No. 10-40065
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ODETT GONZALEZ DE MORALES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CR-762-1
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Odett Gonzalez De Morales (“Gonzalez”) appeals the sentence imposed
after she pleaded guilty to being in the United States illegally after deportation
in violation of 8 U.S.C. § 1326. She asserts in a conclusional manner that the
district court committed plain error by imposing a 16-level increase in her
offense level for a prior drug-trafficking felony and by counting that felony
against both her offense level and her criminal history score.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40065 Document: 00511254955 Page: 2 Date Filed: 10/06/2010
No. 10-40065
The district court properly relied on written judicial confessions to
conclude that Gonzalez committed at least one drug-trafficking felony as
required to support the 16-level increase under U.S. S ENTENCING G UIDELINES
M ANUAL § 2L1.2(b)(1)(A)(i) (2009). See United States v. Garcia-Arellano, 522
F.3d 477, 481 (5th Cir. 2008). Gonzalez’s double-counting argument is foreclosed
because double counting is barred only where it is prohibited by a specific
Guideline. United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001) (relying on
confession to clarify “any ambiguity presented by the indictment and judgment”).
The Guidelines expressly allow consideration of a prior conviction in both the
offense level and the criminal history score. See U.S. S ENTENCING G UIDELINES
M ANUAL § 2L1.2, cmt. n. 6.
Gonzalez also asserts that § 1326(b)’s treatment of prior convictions as
sentencing factors is unconstitutional. This issue “is fully foreclosed from
further debate” and provides no legitimate basis for an appeal. United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). The judgment of the
district court is AFFIRMED.
2