896 F.3d 726
5th Cir.2018Background
- Defendant Jose Carmen Solis Ponce pleaded guilty to illegal reentry after deportation following an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).
- The presentence report (PSR) stated Solis Ponce admitted illegally reentering the U.S. on November 23, 2010; he challenged reliance on that date for the first time in his reply brief.
- The district court applied U.S.S.G. § 2L1.2(b) to enhance the sentence based on two prior felony convictions from 1996 and 1998.
- Solis Ponce argued those prior convictions were too remote to count for criminal history under U.S.S.G. § 4A1.2(e)(1) and thus should not have triggered the § 2L1.2 enhancement.
- The court also considered a downward departure for the age of the 1996 conviction; Solis Ponce argued the extent of that departure was an abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Solis Ponce forfeit challenge to PSR’s entry date? | He contended the November 23, 2010 entry date was unreliable. | Government relied on Solis Ponce’s admission; challenge raised too late. | Forfeited by raising in reply; even on merits, entry date reliance was proper (Yohey). |
| Are prior 1996/1998 convictions too remote for § 4A1.2(e)(1) points? | Solis Ponce argued convictions were outside relevant time period from the date he was found in U.S. | Government argued the triggering date is the illegal reentry, not discovery date, so convictions fall within period. | Trigger is illegal reentry date; convictions were timely, so § 2L1.2(b) enhancement valid. |
| Does § 4A1.2 commentary permit using "commencement of the instant offense" as reentry date? | Solis Ponce disputed applicability. | Court cited § 4A1.2 comment and precedent treating reentry as start of § 1326 offense. | Commentary and precedent support using illegal reentry as commencement. |
| Was district court’s downward departure for old conviction an abuse of discretion? | Solis Ponce argued the extent of departure was inadequate/abusive. | District court exercised discretion in departure amount. | No abuse of discretion; departure affirmed. |
Key Cases Cited
- Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993) (untimely appellate arguments may be forfeited)
- United States v. Hawkins, 866 F.3d 344 (5th Cir. 2017) (timing rules for criminal history computation under Guidelines)
- United States v. Compian-Torres, 712 F.3d 203 (5th Cir. 2013) (illegal reentry offense begins at reentry, not at discovery)
- United States v. Santana-Castellano, 74 F.3d 593 (5th Cir. 1996) (application of criminal history points based on status at reentry)
- United States v. Desselle, 450 F.3d 179 (5th Cir. 2006) (standard for reviewing downward departure for abuse of discretion)
Outcome: Affirmed.