United States v. Jose Arroyo-Raya

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2018
• Docket: 17-20305
• Status: Unpublished

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.