United States v. Colin-Fajardo , 278 F. App'x 340 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 14, 2008
No. 07-41102
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE TRINIDAD COLIN-FAJARDO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-258-ALL
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
José Trinidad Colin-Fajardo appeals the 35-month sentence imposed
following his plea of guilty to unlawful reentry in violation of 8 U.S.C. § 1326.
We conclude that the district court committed no procedural error in
determining the proper guidelines range and affirm.
Under the bifurcated process we employ to review the reasonableness of
a sentence, we look first to whether the district court committed procedural
error; if not, we then determine whether the sentence is substantively
*
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should not be published and is not precedent except under the limited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.
No. 07-41102
reasonable. See Gall v. United States, 128 S. Ct. 586, 597 (2007). Colin-Fajardo
had a prior conviction in North Carolina for possession of methamphetamine
with intent to sell or deliver. The district court characterized this crime as a
felony drug trafficking offense and imposed a 12-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(B). Colin-Fajardo contends that the enhancement
constitutes reversible procedural error.
Pursuant to North Carolina’s sentencing scheme, Colin-Fajardo’s offense
was a Class H offense. The top of the minimum sentencing range for a Class H
offense is 25 months. N.C. GEN. STAT. § 15A-1340.17(c). The corresponding
maximum sentence is 30 months. N.C. GEN. STAT. § 15A-1340.17(d). However,
based on his Prior Record Level II and the absence of aggravating factors, Colin-
Fajardo’s presumptive minimum sentencing range was 6 to 8 months, with a
corresponding maximum sentence of 10 months. Thus, Colin-Fajardo asserts
that his offense was not a felony because it was not punishable by a term of
imprisonment of more than one year.
We disagree. A Class H offense is an “offense punishable by imprisonment
for a term exceeding one year.” U.S.S.G. § 2L1.2, comment. (n.2). The focus of
the inquiry is on whether the offense carries a potential sentence of more than
one year, rather than on whether an individual defendant convicted of that
offense meets the criteria for a sentence of more than one year. See United
States v. Harp, 406 F.3d 242, 245 (4th Cir. 2005); see also United States v.
Caicedo-Cuero, 312 F.3d 697, 699 (5th Cir. 2002).
Although Colin-Fajardo argues that in light of Blakely v. Washington, 542
U.S. 296 (2004), a North Carolina judge may not increase a sentence beyond the
presumptive range based on aggravating factors not found by a jury or admitted
by the defendant, the fact remains that a Class H offense carries a potential
sentence of more than one year in prison. Further, the North Carolina
sentencing grid provides sentences greater than one year for defendants who
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No. 07-41102
have higher prior record levels, without aggravating factors that must be found
by a jury.
Because the range was properly calculated, and because the sentence was
within the guidelines range, the sentence is presumed reasonable. See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also Gall, 128 S. Ct. at
597. We see no reason to disturb the district court’s sentencing discretion in this
case. We do not reach whether the district court’s imposition of the same
sentence on alternative grounds renders any error in the guidelines calculation
harmless.
The judgment of the district court is AFFIRMED.
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