USA v. Elenilson Flores-Rodriguez

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USA v. Elenilson Flores-Rodriguez

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Case: 09-20564

Document: 00511221631

Page: 1

Date Filed: 09/01/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20564 S u m m a r y Calendar September 1, 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. E L E N IL S O N FLORES-RODRIGUEZ, also known as Elenilson Rodriguez Flores, a ls o known as Francisco Aquino, also known as Francisco L Aquino, also known a s Elenilson R. Rodriguez, also known as Elenilson Flores, also known as E le n ils o n Flores Rodriguez, 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. 4:08-CR-255-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* E le n i l s o n Flores-Rodriguez (Flores) appeals following his guilty-plea c o n v ic t io n of illegal reentry. Flores was sentenced to 70 months of imprisonment a n d three years of supervised release. Flores contends that the district court e r r o n e o u s ly calculated his criminal history score by assessing criminal history p o in ts for a prior conviction and sentence under U.S.S.G. § 4A1.1(d) and (e).
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-20564

Document: 00511221631 Page: 2 No. 09-20564

Date Filed: 09/01/2010

S p e c ific a lly , Flores argues that the date of the commission of the instant offense s h o u ld be the date he reentered the United States rather than the date he was fo u n d in the United States because the latter date is not indicative of his p r o p e n s it y to recidivate, that using the date he was found in the United States v io la t e s the Equal Protection Clause, and that assessing points under both § 4A1.1(d) and (e) constitutes impermissible double-counting for the same c o n d u c t . Flores also contends that the district court failed to adequately explain w h y it rejected his arguments for a lesser sentence. F o llo w in g United States v. Booker, 543 U.S. 220 (2005), sentences are r e v ie w e d for procedural and substantive reasonableness. Gall v. United States, 5 5 2 U.S. 38, 51 (2007). Improperly calculating the guidelines range or failing to a d e q u a t e ly explain the chosen sentence is a significant procedural error. Id. We have rejected Flores's argument that the date of the commission of the in s t a n t offense for § 4A1.1 purposes should be the date he reentered the United S t a te s rather than the date he was found in the United States. See United S ta te s v. Reyes-Nava, 169 F.3d 278, 280 (5th Cir. 1999); United States v. S a n ta n a -C a s te lla n o , 74 F.3d 593, 598 (5th Cir. 1996). Flores was found in the U n ite d States on March 19, 2008. On that date, he was serving a sentence of im p r is o n m e n t . Accordingly, he was correctly assessed two points pursuant to § 4A1.1(d) and one point pursuant to § 4A1.1(e). § 4A1.1(d), (e), comment. (n.5). F lo r e s cites no authority for his argument that using the date he was fo u n d in the United States violates the Equal Protection Clause. Therefore, this is s u e is waived for inadequate briefing. See United States v. Stalnaker, 571 F.3d 4 2 8 , 439-40 (5th Cir. 2009). We have also rejected Flores's argument that assessing criminal history p o in ts under both § 4A1.1(d) and (e) constitutes impermissible double-counting. See United States v. Sullivan, No. 09-30998, 2010 WL 2465072, at *1 (5th Cir. J u n e 15, 2010) (unpublished); United States v. Le, 161 F. App'x 362, 363-64 (5th

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Case: 09-20564

Document: 00511221631 Page: 3 No. 09-20564

Date Filed: 09/01/2010

C ir . 2005). Therefore, there was no error in the calculation of his criminal h is t o r y score. F lo r e s 's remaining argument that the district court failed to adequately e x p la in its reasons for rejecting his arguments for a lesser sentence is subject to p la in error review. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5 t h Cir.), cert. denied, 130 S. Ct. 192 (2009). To show plain error, Flores must d e m o n s t r a t e that the district court erred, that the error is clear or obvious, and t h a t the error affects his substantial rights. See Puckett v. United States, 129 S . Ct. 1423, 1429 (2009). If Flores makes such a showing, we have the discretion t o correct the error but only if it "`seriously affect[s] the fairness, integrity, or p u b lic reputation of judicial proceedings.'" Id. (quoting United States v. Olano, 5 0 7 U.S. 725, 736 (1993)). W e need not determine whether the district court erred because Flores c a n n o t show that the error affected his substantial rights. Flores argues only t h a t the inadequacy of the district court's explanation deprived this court of the a b ility to review his sentence. "While a district court errs by failing to explain a sentence, the effect of that error on our review for reasonableness is d im i n i s h e d when the sentence is within the Guidelines range." MondragonS a n t i a g o , 564 F.3d at 365. The 70-month sentence was within the guidelines r a n g e of 70 to 87 months. Flores makes no other argument as to how an a d e q u a t e explanation would have changed his sentence. Therefore, he has failed t o show that the error, if any, affected his substantial rights. See id.

A c c o r d in g ly , there is no reversible plain error with respect to the procedural r e a s o n a b le n e s s of his sentence. See id. T h e judgment of the district court is AFFIRMED.

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