United States v. Ovispo Mateo-De Los Santos ( 2012 )

Case: 11-50917 Document: 00511919117 Page: 1 Date Filed: 07/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 12, 2012
No. 11-50917
c/w No. 11-50930 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OVISPO MATEO DE-LOS SANTOS,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-1728-1
USDC No. 2:10-CR-1291-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
In these consolidated appeals, Ovispo Mateo-De Los Santos (Mateo)
challenges the revocation of the term of supervised release imposed on his 2008
conviction for making false statements in a passport application and his
conviction for illegal reentry into the United States while serving the supervised
release term. We affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-50917
c/w No. 11-50930
Mateo’s 2008 conviction resulted in a prison term of 24 months and a
supervised release term of 24 months. Mateo’s supervised release began on
September 29, 2008. He was deported on October 29, 2008. Border agents
arrested Mateo on August 2, 2010, for being present in the United States
illegally. In January 2011, the Government petitioned to revoke Mateo’s term
of supervised release, alleging that Mateo had violated it by reentering the
United States illegally. Mateo admitted the violations at a hearing held on
September 20, 2011. An order revoking his supervised release issued on
September 22, 2011. The order directed that Mateo serve 24 months in prison
and a one-year term of supervised release following his imprisonment.
The hearing of September 20, 2011, resulted also in Mateo’s guilty plea
conviction for illegal reentry. Mateo was sentenced to serve 96 months in prison
on that conviction and ordered to serve a three-year term of supervised release.
The district court arrived at the sentence by adopting the presentence report
(PSR) and its advisory guidelines range of 77 to 96 months. That range resulted
from Mateo’s total offense level of 21 and criminal history category of VI.
Mateo’s criminal history score of 15 resulted from, inter alia, the assignment of
one criminal history point for a criminal trespass conviction in 1993 and two
criminal history points because Mateo reentered while serving his term of
supervised release.
We reject the contention that the district court was without jurisdiction to
revoke Mateo’s supervised release term and sentence Mateo on the revocation
because the supervised release term was expired when the court pronounced it
revoked. Mateo began his supervised release on September 29, 2008. That term
was due to expire 24 months later, or on about September 28, 2010. However,
Mateo was arrested on August 2, 2010, for illegal reentry. The detention
following that arrest continued until September 20, 2011, the date that his
supervised release was revoked. Thus, because the detention was “in connection
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Case: 11-50917 Document: 00511919117 Page: 3 Date Filed: 07/12/2012
No. 11-50917
c/w No. 11-50930
with [Mateo’s] conviction for a Federal . . . crime” and was for a period of no less
than 30 consecutive days, the term of supervised release was tolled or suspended
at the time Mateo’s supervised release was revoked. 18 U.S.C. § 3624(e); see also
United States v. Molina-Gazca, 571 F.3d 470, 474 (5th Cir. 2009).
Additionally, reviewing for plain error, as Mateo concedes is appropriate,
we reject Mateo’s procedural challenges to the within-guidelines sentence
imposed on the conviction for illegal reentry. Citing U.S.S.G. § 4A1.1(d), the
PSR added two points to Mateo’s criminal history score because Mateo reentered
illegally while on supervised release, i.e., while under a criminal justice
sentence. On its face, § 4A1.1(d) applies in this case, and Mateo cites no decision
by this circuit, or any other circuit, that would support a conclusion to the
contrary. Thus, any error by the district court was not plain or readily apparent.
United States v. Dupre, 117 F.3d 810, 817 (5th Cir. 1997). Consequently, this
claim does not survive plain error review. See Puckett v. United States, 556 U.S.
129, 135 (2009).
Mateo’s criminal history score would be 14 instead of 15 if the criminal
history point for the criminal trespass were set aside. But as any score above 12
results in a category VI criminal history, see U.S.S.G. Ch.5, Sentencing Table,
any error in assigning the point for the criminal trespass did not affect the
calculation of the guidelines range and was consequently harmless. See
Williams v. United States, 503 U.S. 193, 202-03 (1992); United States v. Reyes-
Maya, 305 F.3d 362, 368 (5th Cir. 2002). Therefore, this claim fails plain error
analysis, as Mateo has not shown that the error affected his substantial rights
by affecting “the outcome of the district court proceedings.” Puckett, 556 U.S. at
135 (internal quotation marks and citation omitted).
AFFIRMED.
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