United States v. Ricardo Posas-Torres

Case: 14-41001 Document: 00513169553 Page: 1 Date Filed: 08/26/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-41001
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 26, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
RICARDO POSAS-TORRES, also known as Ricardo Alonso Posas,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-809-1
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Ricardo Posas-Torres pleaded guilty to being unlawfully present in the
United States following deportation, in violation of 8 U.S.C. § 1326(a) and (b).
The court applied a 16-level enhancement, pursuant to Sentencing Guideline
§ 2L1.2(b)(1)(A)(i) (“If the defendant previously was deported, or unlawfully
remained in the United States, after a conviction for a felony that is a drug
trafficking offense for which the sentence imposed exceeded 13 months . . .
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-41001 Document: 00513169553 Page: 2 Date Filed: 08/26/2015
No. 14-41001
increase by 16 levels . . . ”.). In doing so, the court concluded Posas’ prior Illinois
conviction for possession of cannabis with intent to deliver, in violation of 720
Ill. Comp. Stat. 550/5(f), was a drug-trafficking offense. Posas was sentenced
to 41 months’ imprisonment, below the advisory Guidelines sentencing range.
Posas contends the court erred in imposing the enhancement because
there was no evidence of remuneration or consideration; therefore, his Illinois
conviction could not qualify as the requisite drug-trafficking offense for
§ 2L1.2(b)(1)(A)(i) purposes. Although post-Booker, the Guidelines are
advisory only, and a properly preserved objection to an ultimate sentence is
reviewed for reasonableness under an abuse-of-discretion standard, the
district court must still properly calculate the advisory Guidelines-sentencing
range for use in deciding on the sentence to impose. Gall v. United States, 552
U.S. 38, 51 (2007). But, as Posas concedes, because he did not raise this issue
in district court, review is only for plain error. E.g., United States v. Broussard,
669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Posas 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 error, but should do so only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. Id.
Our court, in United States v. Martinez-Lugo, rejected Posas’ contention
that Guideline § 2L1.2(b)(1)(A)(i) requires evidence of remuneration. See 782
F.3d 198, 204–05 (5th Cir. 2015), petition for cert. filed (19 June 2015) (No. 14-
10355). Accordingly, the required clear-or-obvious error is absent.
AFFIRMED.
2