United States v. Luna ( 2021 )

Case: 20-50253 Document: 00515717663 Page: 1 Date Filed: 01/25/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 25, 2021
No. 20-50253
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Gabriel A. Luna,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CR-259-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Gabriel A. Luna appeals his 210-month sentences for conspiring to
possess with intent to distribute and to distribute methamphetamine and
cocaine. He contends that the district court erred by assigning him two
criminal history points under U.S.S.G. § 4A1.1(d) for his 2015 conviction for
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-50253
manufacturing or delivering cocaine under Texas Health and Safety Code
§ 481.112(a) (2015 drug conviction) rather than treating that conviction as
relevant conduct.
Under the Sentencing Guidelines, two points are added “if the
defendant committed the instant offense while under any criminal justice
sentence.” § 4A1.1(d). The term “criminal justice sentence” is, in turn,
defined as “a sentence countable under § 4A1.2.” § 4A1.1, comment. (n.4).
Under U.S.S.G. § 4A1.2(a)(1), a “‘prior sentence’ means any sentence
previously imposed upon adjudication of guilt . . . for conduct not part of the
instant offense.” “[T]he critical inquiry of what constitutes conduct not part
of the instant offense focuses on [whether the conduct was] relevant
conduct” under U.S.S.G. § 1B1.3. United States v. Yerena-Magana, 478 F.3d
683, 688 (5th Cir. 2007) (internal quotation marks and citation omitted).
“Relevant conduct includes ‘all acts and omissions . . . that were part of the
same course of conduct or common scheme or plan as the offense of
conviction.’” United States v. Benns, 740 F.3d 370, 373 (5th Cir. 2014)
(quoting § 1B1.3(a)(2)).
The determination of what constitutes relevant conduct is a finding of
fact that we ordinarily review for clear error. United States v. Brummett, 355
F.3d 343, 345 (5th Cir. 2003). However, because Luna did not raise his
argument in the district court, we review only for plain error. See Puckett v.
United States, 556 U.S. 129, 135 (2009).
The offense conduct and sentence associated with the 2015 drug
conviction predated Luna’s actual participation in the instant conspiracies,
as described in the factual resume and presentence report, by nearly three
years. See § 1B1.3, comment. (n.5(C)) (“[O]ffense conduct associated with
a sentence that was imposed prior to the acts or omissions constituting the
instant federal offense . . . is not considered as part of the same course of
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No. 20-50253
conduct or common scheme or plan as the offense of conviction.”).
Moreover, the 2015 drug conviction and the instant convictions share none
of the same criminal actors outside of Luna and have materially different
offense elements. Compare Tex. Health & Safety Code Ann.
§ 481.112(a), with 21 U.S.C. § 846; see United States v. Rodriguez, 831 F.3d
663, 666 (5th Cir. 2016) (setting forth essential elements of federal drug
conspiracy). Luna therefore fails to show that the district court plainly erred.
See Puckett, 556 U.S. at 135.
AFFIRMED.
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