USA v. Jose Esparza-Montanes

Filing 920100223

Case: 09-10467

Document: 00511033323

Page: 1

Date Filed: 02/23/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-10467 Summary Calendar February 23, 2010 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE ESPARZA-MONTANES, also known as Oscar Herrera-Herrera, also known as Oscar Rivera, also known as Javier Lopez-Ortega, Defendant-Appellant

Appeals from the United States District Court for the Northern District of Texas USDC No. 4:08-CR-163-1

Before KING, STEWART, and HAYNES, Circuit Judges. PER CURIAM:* Jose Esparza-Montanes (Esparza) appeals the 60-month sentence imposed following his guilty plea conviction for illegal reentry following deportation. Esparza challenges the district court's decision to depart upward from criminal history category VI pursuant to U.S.S.G. § 4A1.3, arguing that the district court failed to explain why it bypassed intermediate offense levels or state what

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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

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Case: 09-10467

Document: 00511033323 Page: 2 No. 09-10467

Date Filed: 02/23/2010

offense level or guidelines range it found to be appropriate and thus failed to follow § 4A1.3(a)(4)(B). Esparza's objections below did not preserve the errors he raises on appeal. Cf. United States v. Neal, 578 F.3d 270, 272-73 (5th Cir. 2009); F ED. R. C RIM. P. 51(b). Esparza does not argue, and there is nothing in the record to show, that had the district court expressly applied the incremental approach, it could not have imposed the same sentence or that Esparza would have received a lesser sentence. See United States v. Jones, 444 F.3d 430, 438 (5th Cir. 2006). Thus, Esparza's substantial rights were not affected. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). AFFIRMED.

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