United States v. Jose Sanchez , 419 F. App'x 504 ( 2011 )

Case: 10-50533 Document: 00511421103 Page: 1 Date Filed: 03/23/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 23, 2011
No. 10-50533
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ROSARIO SANCHEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:10-CR-139-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jose Sanchez appeals his sentence after pleading guilty of being in the
United States illegally after removal in violation of 8 U.S.C. § 1326. The district
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50533 Document: 00511421103 Page: 2 Date Filed: 03/23/2011
No. 10-50533
court enhanced Sanchez’s sentence under U.S.S.G. § 2L1.2(b)(1)(C) based on his
having been deported following an aggravated felony, a conviction in Texas for
burglary of a vehicle. The court sentenced Sanchez within the guideline range
to twenty-four months’ imprisonment and three years’ supervised release. The
court stated, at sentencing and in a post-sentencing order, that it would have im-
posed the same sentence without the enhancement as a variance from the guide-
line range under 18 U.S.C. § 3553(a).
Sanchez argues that, whether his sentence was a guideline sentence or a
variance, the district court erred when it applied § 2L1.2(b)(1)(C). Sanchez ac-
knowledges that when he was sentenced, his conviction of burglary counted as
an aggravated felony for purposes of § 2L1.2. He contends that his 365-day sus-
pended sentence for that conviction, however, was revoked and that he was giv-
en a new sentence of 270 days, which was less than the one year required under
8 U.S.C. § 1101(a)(43)(G) to be an “aggravated felony.”
Under Gall v. United States, 552 U.S. 38, 50 (2007), this court must first
ensure that the court properly calculated the guideline range. See United States
v. Delgado-Martinez, 564 F.3d 750, 752-54 (5th Cir. 2009); United States v. Bo-
nilla, 524 F.3d 647, 656 (5th Cir. 2008). Because Sanchez challenged the en-
hancement in the district court, we review that court’s application of the guide-
lines de novo and its factual findings for clear error. See United States v. Rodri-
guez, 602 F.3d 346, 362 (5th Cir. 2010).
This court has rejected the argument Sanchez advances. See United States
v. Arriola-Cardona, 184 F. App’x 373, 374-75 (5th Cir. 2006); United States v.
Retta-Hernandez, 106 F. App’x 879, 880-83 (5th Cir. 2004). Finding the reason-
ing in those cases to be persuasive, we AFFIRM.
2