USA v. Francisco Trejo-Montoya

Filing

UNPUBLISHED OPINION FILED. [16-40752 Affirmed] Judge: CDK, Judge: JLD, Judge: GJC. Mandate pull date is 03/14/2017 for Appellant Francisco Trejo-Montoya [16-40752]

Case: 16-40752

Document: 00513883276

Page: 1

Date Filed: 02/21/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40752
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
February 21, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO TREJO-MONTOYA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-80-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *

Francisco Trejo-Montoya pleaded guilty to being found in the United
States after a previous deportation and received a 77-month prison sentence.
He appeals that sentence, arguing that the district court erred by assessing
three criminal history points for both his prior robbery and burglary sentences
based on the four-year prison terms that he received for each when his
probation was revoked. See U.S.S.G. §§ 4A1.1(a), 4A1.2(k)(1). Relying on

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40752

Document: 00513883276

Page: 2

Date Filed: 02/21/2017

No. 16-40752
Application Note 11 to § 4A1.2, he asserts that one of these prior sentences
should have received no points because his probation for both offenses was
revoked on the same day, he received concurrent sentences upon revocation,
and the offenses were too old to qualify for criminal history points absent the
addition of the revocation sentences. Because Trejo-Montoya did not object to
the calculation of his criminal history score in the district court, we review for
plain error only. See United States v. Jasso, 587 F.3d 706, 709 (5th Cir. 2009).
This court had not considered Application Note 11 in this context, and
the circuits that have addressed the issue have come to different conclusions.
Compare United States v. Flores, 93 F.3d 587, 592 (9th Cir. 1996), and United
States v. Streat, 22 F.3d 109, 110-11 (6th Cir. 1994), with United States v.
Norris, 319 F.3d 1278, 1286-87 (10th Cir. 2003). Accordingly, the district did
not plainly err in assigning three points for each prior sentence. See United
States v. Pedrez, 544 F. App’x 376, 376-77 (5th Cir. 2013); United States v.
Sanchez-Garcia, 307 F. App’x 829, 830-32 (5th Cir. 2009).
AFFIRMED.

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