United States v. Mendoza-Tovar

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 25, 2001
• Docket: 01-50235
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50235

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUVENTINO MENDOZA-TOVAR,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas (A-00-CR-236)

September 24, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Juventino Mendoza-Tovar appeals the sentence imposed following

his conviction for possession of a firearm by a felon in violation

of 18 U.S.C. § 922(g)(1) and illegal reentry after deportation in

violation of 8 U.S.C. § 1326(b)(2). Mendoza-Tovar argues that the

district court improperly applied a two-level enhancement under

U.S.S.G. § 4A1.1(d) for the offense having been committed while

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Mendoza-Tovar was serving a criminal justice sentence. Mendoza-

Tovar did not object to this enhancement before the district court,

and as a result, our review is for plain error.1 We may thus

reverse only if the error is clear and it affects the defendant’s

substantial rights.2

The Government agrees that the district court erred,3 but

argues that the error did not affect substantial rights because the

district court additionally erred by not imposing a two-level

enhancement because the crime of reentry was committed “less than

two years after release from imprisonment on a sentence counted

under (a) or (b) or while in imprisonment or escape status on such

sentence.”4 Mendoza-Tovar was released by the state of Kentucky on

December 1, 1997 and he was in the United States in June, 1999,

when he was arrested for assault in Austin, Texas. We have held

that a violation of § 1326 is a continuing offense that “begins at

the time the defendant illegally re-enters the country and does not

become complete unless or until the defendant is found by the INS

1 United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000). 2 United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001). 3 There is no dispute that Mendoza-Tovar was not under a criminal justice sentence at any time from his 1999 illegal reentry into the United States until his arrest in Travis County, Texas on July 2, 2000. While Mendoza-Tovar committed an assault in June, 1999, he was not sentenced until September, 2000, after he had been arrested on the felon in possession and illegal reentry offenses. Thus, he was not under a criminal justice sentence when he committed either of the instant offenses. 4 U.S.S.G. § 4A1.1(e).

2 in the United States.”5 Therefore, the Government is correct that

Mendoza-Tovar should have received a two-level enhancement under

U.S.S.G. § 4A1.1(e).

Mendoza-Tovar, however, argues that since the Government

failed to raise this objection to the district court, and they have

not raised the issue on appeal that we cannot address it.6 While

the Government did not cross-appeal, it notes that our review here

is for plain error only, and that the defendant’s substantial

rights cannot be affected where he received precisely the treatment

the guidelines required (albeit as a result of two incorrect

applications of the guidelines). We need not resolve this

question, because we find that there are adequate alternative

grounds for the district court to have imposed the two-level

enhancement. As the Government notes, Mendoza-Tovar was, at

sentencing, an excellent candidate for an upward departure under

U.S.S.G. § 4A1.3. When Mendoza-Tovar was arrested, he had set a

vehicle on fire and used his firearm (which he possessed

unlawfully) to shoot out its tires. Mendoza-Tovar had previously

served only four years of an eight-year sentence for manslaughter

in Kentucky, and he was a multiple offender against the immigration

laws of the United States. “Reviewing for plain error, we will

uphold a defendant’s sentence if on remand the district court could

5 United States v. Corro-Balbuena, 187 F.3d 483, 485 (5th Cir. 1999). 6 United States v. El-Zoubi, 993 F.2d 442, 450 (5th Cir. 1993).

3 reinstate the same sentence by relying on a reasonable application

of the Sentencing Guidelines.”7

For the foregoing reasons, we AFFIRM.

7 United States v. Ravitch, 128 F.3d 865, 871 (5th Cir. 1997) (citing United States v. Brunson, 915 F.2d 942, 944 (5th Cir. 1990)).