Case: 10-50908 Document: 00511671962 Page: 1 Date Filed: 11/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 21, 2011
No. 10-50908
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SILVESTRE SANDOVAL-CAMPOS, also known as Silvestre Javier Sandoval-
Campos,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-902-1
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Silvestre Sandoval-Campos appeals the sentence imposed following his
guilty plea conviction for illegal reentry following deportation in violation of 8
U.S.C. § 1326. As Sandoval-Campos concedes, plain error review is proper for
all the issues he raises on appeal because he did not raise any objections to the
presentence report (PSR) or his sentence in the district court. To show plain
error, he must show a forfeited error that is clear or obvious and that affects his
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50908
substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1428-29 (2009). If
he makes such a showing, we have the discretion to correct the error but only if
it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. at 1429.
Section 2L1.2(b)(1)(A)(i) of the United States Sentencing Guidelines
provides for a 16-level increase to a defendant’s offense level if he was deported
following a felony conviction for “a drug trafficking offense for which the
sentence imposed exceeded 13 months.” Sandoval-Campos states that the PSR
“is absent any indication” that any of his three prior Virginia drug convictions
“qualify under the Guidelines as a drug trafficking offense.” The indictments
and the plea agreement for those convictions, however, were attached to the
PSR, and those documents make clear that Sandoval-Campos was convicted
under Virginia Code Annotated § 18.2-248(A) (2006) of two counts of distribution
of methamphetamine and one count of distribution of cocaine. His prior
convictions therefore constituted drug trafficking offenses for purposes of
§ 2L1.2(b)(1)(A)(i). See § 2L1.2, comment. (n.1(B)(iv)); United States v.
Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008); United States v. Bonilla-Mungia,
422 F.3d 316, 320 (5th Cir. 2005); United States v. Garza-Lopez, 410 F.3d 268,
273-74 (5th Cir. 2005).
Sandoval-Campos also argues that the district court plainly erred in
applying the 16-level enhancement because he was sentenced to concurrent
terms of five months in prison in connection with his three drug trafficking
offenses and therefore, he did not have a sentence that exceeded 13 months as
required by § 2L1.2(b)(1)(A)(i). He supports his assertion that his five-month
sentences ran concurrently, as opposed to consecutively as found by the
probation officer and district court, by pointing to the date of his sentencing for
those convictions and the date he was released from prison for the convictions.
The Government argues that the district court properly considered the three
sentences imposed for the three drug trafficking offenses as a single sentence for
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No. 10-50908
purposes of § 2L1.2(b)(1)(A)(i) and properly found that the sentence exceeded 13
months because, under Virginia law, sentences are presumed to run
consecutively.
The Government reads the argument posed by Sandoval-Campos too
broadly as Sandoval-Campos does not argue that the district court erred in
considering his three sentences as one sentence for purposes of
§ 2L1.2(b)(1)(A)(i). In addition, although the Government addresses the issue
in its brief, Sandoval-Campos has not filed a reply brief challenging the
Government’s position that the district court did not plainly err in treating the
sentences as one sentence. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.
1994); Stephens v. C.I.T. Group/Equipment Financing, Inc., 955 F.2d 1023, 1026
(5th Cir. 1992). Accordingly, because the issue is not briefed by Sandoval-
Campos, it is abandoned, and we do not consider it. See United States v.
Scroggins, 599 F.3d 433, 446-47 (5th Cir.), cert. denied, 123 S. Ct. 158 (2010).
Moreover, the issue of whether Sandoval-Campos has a prior sentence that
exceeded 13 months and, more specifically, whether his drug trafficking
sentences were ordered to run concurrently as opposed to consecutively is a
question of fact. “[Q]uestions of fact capable of resolution by the district court
can never constitute plain error.” See United States v. Chung, 261 F.3d 536, 539
(5th Cir. 2001).
Finally, Sandoval-Campos argues that the district court plainly erred in
adding two points to his criminal history score pursuant to U.S.S.G. § 4A1.1(e)
based upon the fact that the instant offense was committed less than two years
after he was released from prison for one of his prior convictions. He states that
§ 4A.1.1(e) provides for an increase to a criminal history score if the defendant
has a prior conviction for a crime of violence, and he asserts that he does not
have a prior conviction for a crime of violence.
Sandoval-Campos’s PSR properly applied the 2009 Guidelines, effective
November 1, 2009, to calculate his recommended guidelines sentence, not the
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No. 10-50908
2010 Guidelines, effective November 1, 2010, as Sandoval-Campos was
sentenced on August 25, 2010. Section 4A1.1(e) of the 2009 Guidelines provided
for the addition of recency points to a criminal history score. § 4A1.1(e) (2009).
Section 4A.1.1 was amended in 2010 to omit the application of recency points to
a criminal history score; however, the amendment is not retroactive to a
sentence imposed prior to its effective date, November 1, 2010. See U.S.S.G.
§ 1B1.10(c). Sandoval-Campos has not demonstrated any plain error with
respect to the district court’s application of recency points to his criminal history
score. His sentence is AFFIRMED.
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