United States v. Mendoza-Tovar ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50235
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUVENTINO MENDOZA-TOVAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(A-00-CR-236)
September 24, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Juventino Mendoza-Tovar appeals the sentence imposed following
his conviction for possession of a firearm by a felon in violation
of 18 U.S.C. § 922(g)(1) and illegal reentry after deportation in
violation of 8 U.S.C. § 1326(b)(2). Mendoza-Tovar argues that the
district court improperly applied a two-level enhancement under
U.S.S.G. § 4A1.1(d) for the offense having been committed while
*
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should not be published and is not precedent except under the limited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.
Mendoza-Tovar was serving a criminal justice sentence. Mendoza-
Tovar did not object to this enhancement before the district court,
and as a result, our review is for plain error.1 We may thus
reverse only if the error is clear and it affects the defendant’s
substantial rights.2
The Government agrees that the district court erred,3 but
argues that the error did not affect substantial rights because the
district court additionally erred by not imposing a two-level
enhancement because the crime of reentry was committed “less than
two years after release from imprisonment on a sentence counted
under (a) or (b) or while in imprisonment or escape status on such
sentence.”4 Mendoza-Tovar was released by the state of Kentucky on
December 1, 1997 and he was in the United States in June, 1999,
when he was arrested for assault in Austin, Texas. We have held
that a violation of § 1326 is a continuing offense that “begins at
the time the defendant illegally re-enters the country and does not
become complete unless or until the defendant is found by the INS
1
United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000).
2
United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001).
3
There is no dispute that Mendoza-Tovar was not under a criminal justice
sentence at any time from his 1999 illegal reentry into the United States until
his arrest in Travis County, Texas on July 2, 2000. While Mendoza-Tovar
committed an assault in June, 1999, he was not sentenced until September, 2000,
after he had been arrested on the felon in possession and illegal reentry
offenses. Thus, he was not under a criminal justice sentence when he committed
either of the instant offenses.
4
U.S.S.G. § 4A1.1(e).
2
in the United States.”5 Therefore, the Government is correct that
Mendoza-Tovar should have received a two-level enhancement under
U.S.S.G. § 4A1.1(e).
Mendoza-Tovar, however, argues that since the Government
failed to raise this objection to the district court, and they have
not raised the issue on appeal that we cannot address it.6 While
the Government did not cross-appeal, it notes that our review here
is for plain error only, and that the defendant’s substantial
rights cannot be affected where he received precisely the treatment
the guidelines required (albeit as a result of two incorrect
applications of the guidelines). We need not resolve this
question, because we find that there are adequate alternative
grounds for the district court to have imposed the two-level
enhancement. As the Government notes, Mendoza-Tovar was, at
sentencing, an excellent candidate for an upward departure under
U.S.S.G. § 4A1.3. When Mendoza-Tovar was arrested, he had set a
vehicle on fire and used his firearm (which he possessed
unlawfully) to shoot out its tires. Mendoza-Tovar had previously
served only four years of an eight-year sentence for manslaughter
in Kentucky, and he was a multiple offender against the immigration
laws of the United States. “Reviewing for plain error, we will
uphold a defendant’s sentence if on remand the district court could
5
United States v. Corro-Balbuena, 187 F.3d 483, 485 (5th Cir. 1999).
6
United States v. El-Zoubi, 993 F.2d 442, 450 (5th Cir. 1993).
3
reinstate the same sentence by relying on a reasonable application
of the Sentencing Guidelines.”7
For the foregoing reasons, we AFFIRM.
7
United States v. Ravitch, 128 F.3d 865, 871 (5th Cir. 1997) (citing
United States v. Brunson, 915 F.2d 942, 944 (5th Cir. 1990)).
4