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United States v. Fuentes

United States Court of Appeals, Fifth Circuit

December 19, 2014

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
ERNESTO FUENTES, also known as Ernesto B. Fuentes, also known as Ernesto Bonilla Ventura, Defendant - Appellant

As Revised January 2, 2015.

Page 214

[Copyrighted Material Omitted]

Page 215

Appeal from the United States District Court for the Southern District of Texas.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Katherine Lisa Haden, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.

For ERNESTO FUENTES, also known as Ernesto B. Fuentes, also known as Ernesto Bonilla Ventura, Defendant - Appellant: Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX.

Before KING, JOLLY, and COSTA, Circuit Judges.

OPINION

Page 216

PER CURIAM

Defendant-Appellant Ernesto Fuentes appeals the twenty-four month sentence imposed following his guilty plea conviction for being found unlawfully present in the United States after deportation, in violation of 8 U.S.C. § 1326(a). He argues that the district court's decision to upwardly depart pursuant to U.S.S.G. § 2L1.2, cmt. n.7, was procedural error and substantively unreasonable. For the following reasons, we AFFIRM the judgment of the district court.

I. BACKGROUND

On August 9, 2013, Defendant-Appellant Ernesto Fuentes pleaded guilty in the United States District Court for the Southern District of Texas to being found unlawfully present in the United States after deportation, in violation of 8 U.S.C. § 1326(a). The district court ordered that a presentence report (" PSR" ) be prepared. The PSR began with a base offense level of eight, pursuant to U.S.S.G. § 2L1.2(a), the section of the United States Sentencing Guidelines applicable to violations of 8 U.S.C. § 1326(a). The PSR next subtracted two offense levels, pursuant to U.S.S.G. § 3E1.1(a), because Fuentes had accepted responsibility for his criminal conduct. Consequently, the PSR determined that Fuentes had a total offense level of six.

Next, the PSR turned to its calculation of Fuentes's criminal history score. As a result of his five prior misdemeanor convictions, Fuentes was assigned a criminal history score of nine, which placed him in Criminal History Category IV.[1] The PSR also noted under the heading of " Other Criminal Conduct," that in 2005 Fuentes had been charged with another count of indecent exposure; however, this charge was dismissed. Based on a total offense level of six and a criminal history category of IV, ...


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