USA v. Odett De Morales

Filing

UNPUBLISHED OPINION FILED. [10-40065 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 10/27/2010 for Appellant Odett Gonzalez De Morales [10-40065]

USA v. Odett De Morales

Doc. 0

Case: 10-40065

Document: 00511254955

Page: 1

Date Filed: 10/06/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40065 S u m m a r y Calendar October 6, 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. O D E T T GONZALEZ DE MORALES, 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. 2:09-CR-762-1

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* O d e t t Gonzalez De Morales ("Gonzalez") appeals the sentence imposed a ft e r she pleaded guilty to being in the United States illegally after deportation in violation of 8 U.S.C. § 1326. She asserts in a conclusional manner that the d is t r ic t court committed plain error by imposing a 16-level increase in her o ffe n s e level for a prior drug-trafficking felony and by counting that felony a g a in s t both her offense level and her criminal history score.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 10-40065

Document: 00511254955 Page: 2 No. 10-40065

Date Filed: 10/06/2010

T h e district court properly relied on written judicial confessions to c o n c lu d e that Gonzalez committed at least one drug-trafficking felony as r e q u ir e d to support the 16-level increase under U.S. SENTENCING GUIDELINES M ANUAL § 2L1.2(b)(1)(A)(i) (2009). See United States v. Garcia-Arellano, 522 F .3 d 477, 481 (5th Cir. 2008). Gonzalez's double-counting argument is foreclosed b e c a u s e double counting is barred only where it is prohibited by a specific G u id e lin e . United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001) (relying on c o n fe s sion to clarify "any ambiguity presented by the indictment and judgment"). The Guidelines expressly allow consideration of a prior conviction in both the o ffe n s e level and the criminal history score. See U.S. SENTENCING GUIDELINES M ANUAL § 2L1.2, cmt. n. 6. G o n z a le z also asserts that § 1326(b)'s treatment of prior convictions as s e n te n c in g factors is unconstitutional. This issue "is fully foreclosed from

fu r t h e r debate" and provides no legitimate basis for an appeal. United States v. P in e d a -A r r e l l a n o , 492 F.3d 624, 625 (5th Cir. 2007). The judgment of the d is t r ic t court is AFFIRMED.

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