United States v. Jose Arroyo-Raya

Case: 17-20305 Document: 00514452888 Page: 1 Date Filed: 05/01/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-20305 FILED
Summary Calendar May 1, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE LUIS ARROYO-RAYA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CR-557-1
Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
Jose Luis Arroyo-Raya appeals his 40-month upward variance sentence
for illegal reentry after being previously removed following a felony conviction.
He asserts that the district court committed plain error by including his prior
Texas conviction for displaying a fictitious registration in the criminal history
calculation. See U.S.S.G. § 4A1.2(c).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-20305 Document: 00514452888 Page: 2 Date Filed: 05/01/2018
No. 17-20305
Considering the factors set out in United States v. Hardeman, 933 F.2d
278, 281 (5th Cir. 1991), we conclude that the issue of whether the Texas
offense of displaying fictitious registration is sufficiently similar to the
excludable offenses listed in § 4A1.2(c)(1) is, at best, subject to reasonable
dispute. See Puckett v. United States, 556 U.S. 129, 135 (2009). Accordingly,
if error occurred, it was neither clear nor obvious. See id.
The judgment of the district court is AFFIRMED.
2