United States v. Julian Hernandez-Garcia

Case: 15-50749 Document: 00513725025 Page: 1 Date Filed: 10/19/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals

No. 15-50749
Fifth Circuit

FILED
Summary Calendar October 19, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee

JULIAN HERNANDEZ-GARCIA,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:14-CR-782-1

Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Julian Hernandez-Garcia appeals the within-
guidelines sentence of 57 months in prison he received following his guilty plea
conviction for illegal reentry. He maintains that the district court erred in
imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) because
his Kansas convictions for distribution of cocaine did not qualify as drug
trafficking offenses for which he received an imposed sentence exceeding 13

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50749 Document: 00513725025 Page: 2 Date Filed: 10/19/2016

No. 15-50749

months. Because Hernandez-Garcia raises this issue for the first time on
appeal, we review for plain error. See United States v. Palacios-Quinonez, 431
F.3d 471, 473 (5th Cir. 2005). To prevail on plain error review, he must show
(1) a forfeited error (2) that is clear or obvious and (3) that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If
Hernandez-Garcia makes the required showing, we may exercise our
discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. Id.
Whether a Kansas judgment reflecting the imposition of a sentence of
incarceration and the grant of a downward departure to a term of probation
qualifies as an imposed sentence exceeding 13 months is a question that is
subject to reasonable dispute. See id.; United States v. Ellis, 564 F.3d 370, 377-
78 (5th Cir. 2009). That question is reasonably debatable, so there can be no
plain error. See Puckett, 556 U.S. at 135; Ellis, 564 F.3d at 377-78.
Accordingly, the judgment of the district court is AFFIRMED.