United States v. De La Cruz ( 2021 )

Case: 20-20177 Document: 00515747095 Page: 1 Date Filed: 02/17/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 17, 2021
No. 20-20177
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Mario Gonzalez De La Cruz, also known as Jose G. Chan
Esteban,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-579-1
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Mario Gonzalez De La Cruz pleaded guilty to illegal reentry after
removal following a felony conviction, in violation of 8 U.S.C. § 1326.
*
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opinion should not be published and is not precedent except under the limited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. 20-20177
Ultimately, he was sentenced to 46 months of imprisonment and three years
of supervised release.
On appeal, Gonzalez De La Cruz challenges only the imposition of a
sentencing enhancement under U.S.S.G. § 2L1.2(b)(2)(B), which, in
relevant part, provides for an eight-level increase “[i]f, before the defendant
was ordered deported or ordered removed from the United States for the first
time, the defendant engaged in criminal conduct that, at any time, resulted in
. . . a conviction for a felony offense (other than an illegal reentry offense) for
which the sentence imposed was two years or more[.]” The commentary
explains that “a defendant shall be considered ‘ordered deported or ordered
removed from the United States’ if the defendant was ordered deported or
ordered removed from the United States based on a final order of exclusion,
deportation, or removal[.]” § 2L1.2, comment. (n.1(A)). Because Gonzalez
De La Cruz objected to the enhancement, we “review the district court’s
interpretation and application of the sentencing guidelines de novo and its
findings of fact for clear error.” United States v. Garcia-Sanchez, 916 F.3d
522, 524 (5th Cir. 2019) (internal quotation marks and citation omitted)
(reviewing a § 2L1.2(b)(3)(B) enhancement). We “will find clear error only
if a review of the record results in a definite and firm conviction that a mistake
has been committed.” United States v. Zuniga, 720 F.3d 587, 590 (5th Cir.
2013) (internal quotation marks and citation omitted).
The presentence report (PSR) based the enhancement on Gonzalez
De La Cruz’s 2004 felony conviction and a 2005 order of removal. However,
he argues that the 2005 removal order was not his first order of deportation
or removal; he relies on a January 2000 “Record of Deportable Alien” that
has the handwritten note of “Prior Deport.” However, the same exhibits
provided also show that the disposition of his removable entry was a “VR,”
meaning “voluntary return,” which is not an order. As the district court
found, the documents submitted by Gonzalez De La Cruz showed voluntary
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Case: 20-20177 Document: 00515747095 Page: 3 Date Filed: 02/17/2021
No. 20-20177
returns to Mexico. Further, the PSR Addendum states that the probation
officer confirmed with an immigration agent that Gonzalez De La Cruz was
not subject to a formal order of removal until July 2005. Gonzalez De La
Cruz did nothing to rebut that finding, such as offering an order deporting or
removing him or even testifying to any such proceeding preceding 2005.
Thus, it is plausible that his first order was in 2005, not before. For these
reasons, we are not left with a definite and firm conviction that a mistake has
been committed, see Zuniga, 720 F.3d at 590, and we conclude that the
district court did not clearly err in determining that the enhancement applied,
see Garcia-Sanchez, 916 F.3d at 524.
AFFIRMED.
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