United States v. Jose Nino-Carreon

910 F.3d 194
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 3, 2018
Docket17-11433
StatusPublished
Cited by14 cases

This text of 910 F.3d 194 (United States v. Jose Nino-Carreon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jose Nino-Carreon, 910 F.3d 194 (5th Cir. 2018).

Opinion

JERRY E. SMITH, Circuit Judge:

*196 Jose Nino-Carreon pleaded guilty of illegal reentry after removal and was sentenced to fifty months' imprisonment. He appeals his sentence, asserting that the district court plainly erred in assessing criminal history points for three convictions occurring in 2003 and 2004. He maintains that the court determined that the earliest date of his offense and relevant conduct was August 17, 2016, the date he was apprehended by immigration authorities, and consequently, that the earlier convictions should not have been scored because the sentence in each was imposed more than ten years before that date. See U.S.S.G. § 4A1.2(e)(2). Though Nino-Carreon is correct that the district court erred in scoring those three convictions, he has not demonstrated that the error affected his substantial rights. See Puckett v. United States , 556 U.S. 129 , 135, 129 S.Ct. 1423 , 173 L.Ed.2d 266 (2009). Therefore, we affirm.

I.

We review this issue for plain error because Nino-Carreon failed to object to the computation of his criminal history score in the district court. See United States v. Carlile , 884 F.3d 554 , 556 (5th Cir. 2018). Nino-Carreon must satisfy three hurdles before this court may exercise its discretion to correct plain error. First, "there must be an error or defect ... that has not been intentionally relinquished or abandoned ... by the appellant." Puckett , 556 U.S. at 135 , 129 S.Ct. 1423 . Second, "the legal error must be clear or obvious, rather than subject to reasonable dispute." Id. Third, "the error must have affected the appellant's substantial rights." Id. If Nino-Carreon satisfies these three conditions, "the court of appeals should exercise its discretion to correct the forfeited error if the error 'seriously affects the fairness, integrity or public reputation of judicial proceedings.' " Molina-Martinez v. United States , --- U.S. ----, 136 S.Ct. 1338 , 1343, 194 L.Ed.2d 444 (2016) (quoting United States v. Olano , 507 U.S. 725 , 736, 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) ).

II.

As Nino-Carreon acknowledges, his criminal history category of VI remains unchanged so long as the district court correctly assessed a criminal history point for one of the three contested convictions. The most recent sentencing date is December 1, 2004. Therefore, he must have entered the United States on or before December 1, 2014, when the ten-year limitations period expired, for the district court not to have erred.

Nino-Carreon contends that this court must use the date he was apprehended in the United States, August 17, 2016, as his earliest offense date. But "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 *197 date on which the defendant was found by immigration authorities in the United States." United States v. Ponce , 896 F.3d 726 , 728 (5th Cir. 2018). Thus, Nino-Carreon's assertion is meritless.

Nevertheless, contrary to the government's claims, the record does not support a finding that Nino-Carreon reentered the United States between his December 30, 2012, deportation and December 1, 2014. The Presentence Report ("PSR") states that Nino-Carreon (1) worked as a roofer in Texas from 2015 to 2016 and (2) was in a relationship with his girlfriend, an alleged U.S. resident who lived in Fort Worth, "for two years" before his August 29, 2017, PSR interview. Consequently, nothing in the PSR points to a date of reentry earlier than 2015. The government's assertion that the probation officer "implicitly found" that the December 1, 2004, sentence occurred "within ten years of [Nino-Carreon's] most recent illegal reentry," contrary to the PSR's explicit statement that his "earliest offense date, including relevant conduct[,] is August 17, 2016," is unavailing. Therefore, Nino-Carreon has satisfied the first two plain-error prongs: There was an error that was not intentionally relinquished or abandoned, and the error was clear based on the evidence contained in the PSR.

To satisfy the third prong, "the defendant ordinarily must 'show a reasonable probability that, but for the error, the outcome of the proceeding would have been different.' " Rosales-Mireles v. United States , --- U.S. ----, 138 S.Ct. 1897 , 1904-05, 201 L.Ed.2d 376 (2018) (quoting Molina-Martinez , 136 S.Ct. at 1343 ). "When a defendant is sentenced under an incorrect Guidelines range-whether or not the defendant's ultimate sentence falls within the correct range-the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error." Molina-Martinez

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Bluebook (online)
910 F.3d 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jose-nino-carreon-ca5-2018.