Rudolph THOMAS, Petitioner v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
No. 09-60926
United States Court of Appeals, Fifth Circuit.
Sept. 20, 2010.
610 F.3d 60
Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), sentences are reviewed for procedural and substantive reasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Improperly calculating the guidelines range is a significant procedural error. Id.
Because Rhine did not object to the alleged error in the district court, review is for plain error. See United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005). To show plain error, Rhine must demonstrate that the district court erred, that the error is clear or obvious, and that the error affects her substantial rights. See Puckett v. United States, — U.S. —, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If Rhine makes such a showing, we have the discretion to correct the error but only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
The Guidelines provide for an offense-level enhancement if the offense involved “the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification.” § 2B1.1(b)(10)(C)(i) (2009). “Means of identification” is defined as inter alia “any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual.”
The undisputed evidence was that Rhine obtained a Texas driver‘s license in one of the victim‘s names, which matched the name on checks that she stole from the mail. Rhine then used the license and checks to buy tools. Though there was no direct evidence that Rhine used the information on the checks to obtain the driver‘s license, the district court could have reasonably inferred that she did so. See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir.2006).
Accordingly, there was no error in the application of the enhancement because Rhine unlawfully used one means of identification, the information on the victim‘s checks, to obtain another means of identification, the false driver‘s license. See § 2B1.1(b)(10)(C)(i), comment. (n. 9(C)(ii)); United States v. Rhymer, 299 Fed.Appx. 378, 379-80 (5th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 1638, 173 L.Ed.2d 1015 (2009).
The judgment of the district court is AFFIRMED.
Rosemarie Dorothea Robinson, Esq., Law Office of Rosemarie D. Robinson, Fort Lauderdale, FL, for Petitioner.
Stefanie Notarino Hennes, Trial Attor-
Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Rudolph Thomas, a native and citizen of Jamaica, petitions this court for review of the Board of Immigration Appeals’ (BIA) order denying his motion to reopen his in abstentia removal proceedings. Thomas does not challenge the BIA‘s determination that his motion to reopen was untimely but maintains that the time limitation should not apply because his motion to reopen was based upon changed country conditions in Jamaica.
An alien is not bound by the time limitation for filing a motion to reopen if his request for asylum or withholding of removal “is based on changed country conditions arising in the country of nationality ... if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.”
The BIA did not abuse its discretion in determining that Thomas failed to establish changed country conditions and that his motion to reopen was, therefore, untimely. See Panjwani v. Gonzales, 401 F.3d 626, 632-33 (5th Cir.2005). Accordingly, we decline to address Thomas‘s underlying claims that he is eligible for asylum and withholding of removal. See
Accordingly, Thomas‘s petition for review is DENIED.