United States v. Moreno-Calzada

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 24, 2008
No. 07-10526
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FELIPE MORENO-CALZADA
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:06-CR-47-ALL
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Felipe Moreno-Calzada pleaded guilty to a one-count indictment charging
him with illegal reentry. See 8 U.S.C. § 1326. The district court sentenced
Moreno-Calzada to 71 months of imprisonment, to be served consecutively to any
as-yet-undetermined state sentence that results from the revocation of state
probation. Moreno-Calzada challenges the 16-level enhancement to his offense
level and the consecutive nature of his sentence. However, he objected to
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-10526
neither, limiting our review to plain error. See United States v. Lewis, 412 F.3d
614, 615-16 (5th Cir.2005).
The Government concedes that in light of United States v. Ortega-
Gonzaga, 490 F.3d 393 (5th Cir.), cert. denied, 128 S. Ct. 410 (2007), the district
court plainly erred in applying a 16-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A) based on Moreno-Calzada’s California conviction for residential
burglary. Accordingly, we vacate Moreno-Calzada’s sentence and remand for
resentencing.
Moreno-Calzada also argues that the district court lacked the authority
to order that his sentence run consecutively to an as-yet-unimposed state
sentence. This argument is foreclosed by United States v. Brown, 920 F.2d 1212,
1216-17 (5th Cir. 1991) (per curiam), abrogated on other grounds by United
States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006).
AFFIRMED IN PART; VACATED IN PART AND REMANDED.
2