United States v. Esteban Hernandez-Flores , 460 F. App'x 434 ( 2012 )

Case: 11-20140 Document: 00511759683 Page: 1 Date Filed: 02/15/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 15, 2012
No. 11-20140
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ESTEBAN HERNANDEZ-FLORES, also known as Esteban Flores Hernandez,
also known as Esteban Hernandez Flores,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-550-1
Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Esteban Hernandez-Flores pleaded guilty to one
count of unlawful reentry of a deported alien following an aggravated felony
conviction and was sentenced to 71 months in prison. On appeal, Hernandez-
Flores challenges his sentence, insisting that the district court erred in assessing
two criminal history points under U.S.S.G. § 4A1.1(d) based on his commission
of the instant offense while under a criminal justice sentence of parole.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20140
Our review of sentences for reasonableness is a two-step process. We look
first to whether the district court committed any significant procedural error; if
not, we then review the sentence for substantive reasonableness. See Gall v.
United States, 552 U.S. 38, 51 (2007). Hernandez-Flores’s challenge to the
calculation of his criminal history score implicates the first or procedural-error
prong of our two-step review. See United States v. Delgado-Martinez, 564 F.3d
750, 752-53 (5th Cir. 2009). We review the district court’s interpretation and
application of the Guidelines de novo, and its findings of fact for clear error. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Factual findings under the Guidelines must be based on reliable
information and the government has the burden of proving facts that enhance
a sentence by a preponderance of the evidence. United States v. Conner, 537
F.3d 480, 492 (5th Cir. 2008). The presentence report (PSR) is generally
sufficiently reliable evidence for factfinding under the Guidelines, and the
district court may adopt it without further inquiry if the facts have an adequate
evidentiary basis and the defendant does not present rebuttal evidence. United
States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).
For the first time on appeal, Hernandez-Flores contends that there was no
evidence to support a finding that he was still subject to parole on October 31,
2005. We review a sentencing objection that was not presented to the district
court for plain error. United States v. Gonzalez-Guzman, 597 F.3d 695, 696 (5th
Cir. 2010). The PSR stated that Hernandez-Flores was subject to parole related
to his Texas controlled-substance conviction until October 31, 2005, and that the
information in the PSR was based on the investigative files of the United States
Attorney and Immigration and Customs Enforcement (ICE). Hernandez-Flores
did not object to this portion of the PSR, did not raise an issue regarding the fact
of parole at his sentencing, and presented no evidence to refute it. Hernandez-
Flores has not established plain error because the district court was entitled to
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No. 11-20140
rely on the information in the PSR for purposes of calculating his criminal
history score. See Caldwell, 448 F.3d at 290.
Hernandez-Flores also asserts that there was no evidence to support a
finding that he committed the offense of reentry by returning to the United
States prior to August 26, 2009, the date on which he was found in the United
States. Being found in the United States illegally is a continuing offense that
commences when a defendant reenters the United States and continues until the
defendant is found. United States v. Santana-Castellano, 74 F.3d 593, 598 (5th
Cir. 1996). Hernandez-Flores told ICE agents that he returned to this country
in 2005 and told the probation officer that he returned in 2003. Based on all of
the information presented, the district court made a specific finding that
Hernandez-Flores returned to the United States in 2003. As this finding is
plausible in light of the record as a whole, Hernandez-Flores has not shown that
it is clearly erroneous. See United States v. Villegas, 404 F.3d 355, 361-62 (5th
Cir. 2005).
Finally, Hernandez-Flores claims that his counsel provided ineffective
assistance. He did not raise this claim in the district court, however, and the
district court did not hear any evidence related to it. The record is not
sufficiently developed for us to consider the claim of ineffective assistance of
counsel, so we deny it without prejudice to Hernandez-Flores’s right to raise it
in a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
See United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006); United States
v. Kizzee, 150 F.3d 497, 502-03 (5th Cir. 1998).
AFFIRMED.
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