USA v. Jorge Agustin-Garcia
UNPUBLISHED OPINION FILED. [16-41041 Affirmed] Judge: PEH, Judge: EHJ, Judge: JES. Mandate issue date is 11/16/2017 for Appellant Jorge Agustin-Garcia [16-41041]
Date Filed: 10/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
October 25, 2017
UNITED STATES OF AMERICA,
Lyle W. Cayce
Plaintiff - Appellee
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-283-1
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
Jorge Agustin-Garcia pleaded guilty without a plea agreement to one
count of illegal reentry. Agustin-Garcia’s presentence report (PSR) assigned a
base offense level of eight, recommended an eight-level increase pursuant to
§ 2L1.2(b)(1)(C) (2014) based on his 2010 conviction for attempted sexual
assault of a child, and assigned a two-level decrease based on acceptance of
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 10/25/2017
responsibility for the offense, resulting in a total offense level of 14. AgustinGarcia’s previous convictions for petit larceny, making a terroristic threat,
third-degree assault, attempted sexual assault of a child, failure to appear in
court, driving while intoxicated, and a prior illegal reentry charge yielded a
criminal history score of 14 that established a criminal history category of VI.
The district court granted the Government’s motion for an additional one-level
reduction for acceptance of responsibility, which resulted in a guidelines range
of 33-41 months. Agustin-Garcia was sentenced to 36 months of imprisonment
with no term of supervised release. He did not object to the calculation of his
criminal history score in the district court.
Agustin-Garcia now argues that the district court reversibly erred in
assigning him two criminal history points for both the terroristic threat and
assault convictions because he was sentenced for each on the same day. He
argues (and the Government concedes) that his correct criminal history
category would have been a V. A criminal history category of V and an offense
level of 14 would have given a guidelines range of 30-37 months imprisonment.
This court reviews the district court’s sentence for plain error. Given
Agustin-Garcia’s lengthy criminal history, including a previous conviction for
illegal reentry, and his sentence that falls within both the correct and incorrect
guideline ranges, this court finds that the district court’s computational error
did no offense to the fairness, integrity, or public reputation of the judicial
For these reasons, we AFFIRM the sentence of the district court.
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