USA v. Jose Palomar-Martinez

Filing

UNPUBLISHED OPINION FILED. [15-51148 Affirmed ] Judge: WED , Judge: FPB , Judge: PRO Mandate pull date is 01/05/2017 for Appellant Jose De Refrugio Palomar-Martinez [15-51148]

Case: 15-51148

Document: 00513798575

Page: 1

Date Filed: 12/15/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-51148
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
December 15, 2016

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
JOSE DE REFRUGIO PALOMAR-MARTINEZ, also known as Jose Refrugio
Palomar-Martinez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:14-CR-1696-1
Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM: *
Jose De Refrugio Palomar-Martinez appeals his sentence for illegally
reentering the United States after deportation, in violation of 8 U.S.C. § 1326.
The district court sentenced him to 42 months of imprisonment and three years
of supervised release. Palomar-Martinez argues that the district court erred
in applying the 12-level enhancement in U.S.S.G. § 2L1.2(b)(1)(B) based solely

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

Case: 15-51148

Document: 00513798575

Page: 2

Date Filed: 12/15/2016

No. 15-51148
on the presentence report (PSR), which characterized his prior Mississippi
conviction of possessing with intent to distribute a controlled substance as a
“drug trafficking offense.” We review for plain error. United States v. ChavezHernandez, 671 F.3d 494, 497 (5th Cir. 2012).
Palomar-Martinez does not explain what conduct proscribed by the
Mississippi controlled substances statute falls beyond the scope of the
Guidelines’ definition of “drug trafficking offense,” much less show that the
district court committed clear or obvious error in treating the prior Mississippi
offense as categorically supporting the enhancement. See Puckett v. United
States, 556 U.S. 129, 135 (2009); see also United States v. Scroggins, 599 F.3d
433, 446-47 (5th Cir. 2010) (holding that failure to brief an argument waives
it).

Also, Palomar-Martinez did not question, or attempt to rebut, the

information in the PSR in the district court. See United States v. Ramirez, 367
F.3d 274, 277 (5th Cir. 2004). In any event, even if we accept for the sake of
argument Palomar-Martinez’s premise that the district court should have
consulted the sort of documents approved in Shepard v. United States, 544 U.S.
13 (2005), he cannot show plain error because the Government has
supplemented the record on appeal with Shepard documents that confirm the
PSR’s description of the offense. See United States v. Garcia-Arellano, 522 F.3d
477, 480 (5th Cir. 2008), overruled on other grounds by United States v. Hinkle,
832 F.3d 569, 575 & n.27 (5th Cir. 2016).
AFFIRMED.

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