United States v. Jose Solis Ponce

Case: 17-20329 Document: 00514566395 Page: 1 Date Filed: 07/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-20329 FILED
Summary Calendar July 23, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE CARMEN SOLIS PONCE, also known as Jose Carmen Solis-Ponce, also
known as Igancio Solis, also known as Jose Ponce Solis, also known as Jose
Carmen Ponce Solis, also known as Jose Carmen Solis, also known as Jose S.
Carmen, also known as Jose C. Solis, also known as Jose C. Ponce,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before KING, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Jose Carmen Solis Ponce appeals his guilty-plea conviction and sentence
for illegal reentry after deportation following an aggravated felony conviction,
in violation of 8 U.S.C. § 1326(a) and (b)(2). He argues that the district court
erred in applying U.S.S.G. § 2L1.2(b) to enhance his sentence based on his prior
1996 and 1998 felony convictions.
To the extent that Solis Ponce is challenging the reliability of the
presentence report’s determination that he admittedly reentered the United
States illegally on November 23, 2010, he has forfeited that argument by
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No. 17-20329
raising it for the first time in his reply brief. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993). Even if he had not forfeited this argument, we would
find no error in the district court’s reliance on Solis Ponce’s admitted date of
entry.
There is likewise no merit to Solis Ponce’s contention that his prior
convictions should not have been used to enhance his sentence under § 2L1.2(b)
because they were too remote from the date on which he was found illegally in
the United States and, thus, should not have received criminal history points
under U.S.S.G. § 4A1.2(e)(1). We review this issue de novo. See United States
v. Hawkins, 866 F.3d 344, 346-47 (5th Cir. 2017).
“A § 1326 offense begins at the time the defendant illegally re-enters the
country and does not become complete unless or until the defendant is found
by [immigration authorities] in the United States.” United States v. Compian-
Torres, 712 F.3d 203, 207 (5th Cir. 2013) (internal quotation marks and
citation omitted); see also United States v. Santana-Castellano, 74 F.3d 593,
597-98 (5th Cir. 1996) (rejecting a challenge to the application of U.S.S.G.
§ 4A1.1(d), which adds criminal history points if the defendant was under a
criminal justice sentence at the time of his illegal reentry). The commentary
to § 4A1.2 states that “the term ‘commencement of the instant offense’ includes
any relevant conduct.” § 4A1.2, comment. (n.8). Accordingly, when
determining whether a prior conviction meets the time-period requirement for
assessing criminal history points under § 4A1.2(e), the triggering date is that
of the defendant’s illegal reentry, not the date on which the defendant was
found by immigration authorities in the United States. Because Solis Ponce’s
prior convictions were within the requisite time period from his illegal reentry
date in order to receive criminal history points under § 4A1.2(e)(1), the district
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No. 17-20329
court did not err in enhancing his offense level under § 2L1.2(b) based on those
convictions. See § 2L1.2, comment. (n.3); Hawkins, 866 F.3d at 346-47.
Finally, Solis Ponce has failed to show that the extent of the district
court’s downward departure based on the age of his 1996 conviction constituted
an abuse of discretion. See United States v. Desselle, 450 F.3d 179, 182 (5th
Cir. 2006). The judgment of the district court is AFFIRMED.
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