United States v. Andres Avila-Cruz

Case: 17-41267 Document: 00514673801 Page: 1 Date Filed: 10/09/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-41267 October 9, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ANDRES AVILA-CRUZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:17-CR-441-1
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Andres Avila-Cruz contests the sentence imposed following his guilty
plea conviction of illegal reentry into the United States after deportation. He
contends in his opening brief the district court erred in enhancing his offense
level by eight levels pursuant to Sentencing Guideline § 2L1.2(b)(3)(B)
(enhancing defendant’s sentence “[i]f, at any time after the defendant was
ordered deported or ordered removed from the United States for the first time,
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 17-41267
the defendant engaged in criminal conduct resulting in . . . a conviction for a
felony offense (other than an illegal reentry offense) for which the sentence
imposed was two years or more”). In his opening brief, Avila contends the
Government failed to establish he engaged in the criminal conduct that
resulted in his Alabama felony conviction of possession of a forged instrument
“after [he] was ordered deported or ordered removed from the United States
for the first time”. Id.
Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48-51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751-53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Because, as he admits, Avila did not raise in district court the issue
presented on appeal, review is only for plain error. E.g., United States v.
Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Avila must
show a forfeited plain (clear or obvious) error that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we
have the discretion to correct the reversible plain error, but should do so only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.The Government points to the relevant state-court indictment
containing a notation showing the incident occurred on 3 February 2016, after
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No. 17-41267
Avila was first ordered removed or deported. In his reply brief, Avila
acknowledges the significance of the date notation and concedes there was no
plain error.
AFFIRMED.
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