USA v. Jorge Gonzalez-Villegas

Filing

UNPUBLISHED OPINION FILED. [09-20517 Dismissed as Frivolous] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 10/04/2010 for Appellant Jorge Gonzalez-Villegas [09-20517]

USA v. Jorge Gonzalez-Villegas

Doc. 0

Case: 09-20517

Document: 00511231403

Page: 1

Date Filed: 09/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20517 S u m m a r y Calendar September 13, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O R G E GONZALEZ-VILLEGAS, also known as Jorge Villegas Gonzalez, also k n o w n as Federico Sanchez Benitez, also known as Jorge Villegas Gonzales, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-161-1

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* J o r g e Gonzalez-Villegas (Gonzalez) appeals the 46-month sentence im p o s e d following his guilty-plea conviction for illegal reentry. Gonzalez argues t h a t the district court erroneously calculated his criminal history score by a s s ig n in g points to two expired convictions which should not have been c o n s id e r e d under the Guidelines. Gonzalez contends that he should have been p la c e d in category III rather than category IV with respect to his criminal

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Dockets.Justia.com

Case: 09-20517

Document: 00511231403 Page: 2 No. 09-20517

Date Filed: 09/13/2010

h is t o r y score and that his guidelines range should have been 46-57 months. Gonzalez further argues that the error is not harmless because the court d o w n w a r d ly departed and would likely have departed to a category II criminal h is t o r y score if the guidelines range had been properly calculated. T h e Government argues that there is no relief available to Gonzalez on a p p e a l. The Government notes that Gonzalez's written objections regarding his c r im in a l history score were sustained by the district court and Gonzalez's g u id e lin e s range was recalculated with a category III criminal history score. Gonzalez did not file a reply brief. A review of the record indicates that the district court granted the relief w h ic h Gonzalez now seeks. The district court agreed with Gonzalez at the s e n te n c in g hearing that a 1997 reentry date could not be used as the date the in s t a n t offense was committed. Therefore, the two criminal history points

a s s o c ia t e d with 1990 and 1991 convictions and two additional criminal history p o in ts assigned under U.S.S.G. § 4A1.1(d) were not counted. The district court a d o p t e d the presentence report as modified with a criminal history category III a n d noted that the guidelines range was 46-57 months. Gonzalez's request for a downward departure was explicitly rejected by the district court. The district c o u r t imposed a sentence within the guidelines range and commented that the s e n te n c e accomplished the objectives of 18 U.S.C. § 3553(a). T h e error of which Gonzalez now complains was resolved in his favor by t h e district court. His appeal is wholly without merit and frivolous and therefore is dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1 9 8 3 ); 5TH CIR. R. 42.2. Further, counsel is warned that the filing of an appeal r a is in g a frivolous issue is a needless waste of resources and could result in the im p o s it io n of sanctions. See United States v. Gaitan, 171 F.3d 222, 223-24 (5th C ir . 1999). APPEAL DISMISSED; SANCTION WARNING ISSUED.

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