United States v. Francisco Trejo-Montoya

677 F. App'x 162

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 21, 2017
• Docket: 16-40752 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Francisco Trejo-Montoya pleaded guilty to being found in the United States after a previous deportation and received a 77- month prison sentence. He appeals that sentence, arguing that the district court erred by assessing three criminal history points for both his prior robbery and burglary sentences based on the four-year prison terms that he received for each when his probation was revoked. See U.S.S.G. §§ 4Al.l(a), 4A1.2(k)(l). Relying on Application Note 11 to § 4A1.2, he asserts that one of these prior sentences should have received no points because his probation for both offenses was revoked on the same day, he received concurrent sentences upon revocation, and the offenses were too old to qualify for criminal history points absent the addition of the revocation sentences. Because Trejo-Montoya did not object to the calculation of his criminal history score in the district court, we review for plain error only. See United States v. Jasso, 587 F.3d 706, 709 (5th Cir. 2009),

This court had not considered Application Note 11 in this context, and the circuits that have addressed the issue have come to different conclusions. Compare United States v. Flores, 93 F.3d 587, 592 (9th Cir. 1996), and United States v. Streat, 22 F.3d 109, 110-11 (6th Cir. 1994), with United States v. Norris, 319 F.3d 1278, 1286-87 (10th Cir. 2003). Accordingly, the district did not plainly err in assigning three points for each prior sentence. See United States v. Pedrez, 544 Fed.Appx. 376, 376-77 (5th Cir. 2013); United States v. Sanchez-Garcia, 307 Fed.Appx. 829, 830-32 (5th Cir. 2009).

AFFIRMED.

* Pursuant to 5th Cir. R, 47,5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.