United States v. Emilio Borja-Estrada

Case: 10-40840 Document: 00511413539 Page: 1 Date Filed: 03/16/2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED March 16, 2011 No. 10-40840 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. EMILIO BORJA-ESTRADA, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:10-CR-277-1 Before WIENER, PRADO and OWEN, Circuit Judges. PER CURIAM:* Emilio Borja-Estrada appeals the sentence of 80 months of imprisonment imposed following his guilty plea conviction for illegal reentry after deportation. Borja-Estrada argues that the use of a prior alien smuggling conviction to both enhance his offense level and to calculate his criminal history score constitutes impermissible double counting. As Borja-Estrada concedes, his argument is foreclosed by precedent. See United States v. Kings, 981 F.2d 790, 796 (5th Cir. 1993). Accordingly, the Government’s motion for summary affirmance is * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40840 Document: 00511413539 Page: 2 Date Filed: 03/16/2011 No. 10-40840 GRANTED, its alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED. 2