United States v. Memon

141 F. App'x 333

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 15, 2005
• Docket: 04-50792
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS August 15, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 04-50792 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL AMIN MEMON,

Defendant-Appellant.

---------------------------------------------------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 1:04-CR-104-ALL-SS ----------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

Michael Amin Memon pleaded guilty to illegally reentering the United States following

deportation in violation of 8 U.S.C. § 1326. Because Memon was deported following a felony theft

conviction for which he received a five-year suspended sentence, the district court enhanced Memon’s

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(C). Memon was sentenced to 14 months of

imprisonment and a three-year term of supervised release.

Memon argues that the district court erred in using his prior theft conviction to enhance his

sentence because, prior to his deportation, that sentenced was reduced to one of straight probation.

The state court order on which Memon relies purports merely to grant him an early discharge from

the probation he was serving on his suspended imprisonment sentence. Although Texas law allows

a state court to amend or modify an original sentence, such an amendment or modification is not

necessary for the early termination of a term of probation. See TEX. CODE CRIM. PROC. art. 42.12

§ 23 (recodified at art. 42.12 § 20(a) & Histori cal and Statutory Notes (Vernon 1979 & Supp.

2004)). Because the state court order at issue here had no effect upon the original sentence of

imprisonment on the theft conviction, the district court did not err in enhancing Memon’s sentence

pursuant to § 2L1.2(b)(1)(C).

Memon also argues that, in light of United States v. Booker, 125 S. Ct. 738 (2005), the

district court erred in sentencing him under a mandatory guideline sentencing scheme. Because

Memon did not raise this issue in the district court, we review it only for plain error. See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005). Memon is unable to establish

plain error with regard to his Booker claim because he cannot establish that being sentenced under

a mandatory sentencing guidelines scheme affected his substantial rights. The record does not

indicate that the district court would have reached a significantly different result under a sentencing

scheme in which the guidelines were advisory only. See Valenzuela-Quevedo, 407 F.3d at 733-34.

AFFIRMED.

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