Case: 10-10473 Document: 00511381693 Page: 1 Date Filed: 02/14/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 14, 2011
No. 10-10473
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ANDRES ALFREDO ESCOBAR-SORIANO,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CR-165-1
Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Andres Alfredo Escobar-Soriano appeals his sentence of 57-months’
imprisonment, following his guilty-plea conviction for illegal reentry following
deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court
assessed a 16-level enhancement under Guideline § 2L1.2(b)(1)(A)(i), after
determining Escobar was previously deported following a felony conviction for
possession, with intent to distribute, methamphetamine and aiding and
abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, for which he was
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 10-10473
sentenced to 42 months’ imprisonment. Escobar contends the district court
lacked sufficient evidentiary basis for finding he had sustained this prior
conviction.
According to Escobar, the district court plainly erred in applying the
§ 2L1.2(b)(1)(A)(i) enhancement because: it lacked judicial records establishing
his prior conviction; and it could not apply the enhancement based solely on the
presentence investigation report’s characterization of the conviction. Escobar
contends the court’s application of this § 2L1.2(b)(1)(A)(i) enhancement, and the
resulting increase of his sentence beyond § 1326(b)’s statutory maximum of two
years’ imprisonment, was plainly erroneous in the light of the lack of proof of his
prior conviction.
As Escobar concedes, he failed to object on this ground at sentencing.
Therefore, review is only for plain error. See, e.g., United States v.
Garcia-Arellano, 522 F.3d 477, 480 (5th Cir. 2008). To show reversible plain
error, Escobar must show a clear or obvious error that affects his substantial
rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If reversible plain
error is shown, our court retains discretion to correct it and, generally, will do
so only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
Our court granted the Government’s unopposed motion to supplement the
appellate record with a certified copy of the indictment, plea agreement, factual
résumé, and criminal judgment from Escobar’s prior felony drug-trafficking
offense, case no. 4:00-CR-041-E(02), from the Northern District of Texas. In
determining whether the district court committed reversible plain error, we
consider the appellate record supplemented with those documents. See
Garcia-Arellano, 522 F.3d at 480.
Escobar admitted in his motion for a downward variance in district court
that, he had been “convicted of a federal drug offense”, resulting in his
deportation in 2003. Moreover, he has not contended, here or in the district
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No. 10-10473
court, that he was not the person convicted in case no. 4:00-CR-041-E(02). Based
on the record on appeal, as supplemented, Escobar has failed to show plain error.
AFFIRMED.
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