United States v. Jose Sanchez
419 F. App'x 504
5th Cir.
2011
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Case Information

*1 Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM: [*]

Jose Sanchez appeals his sentence after pleading guilty of being in the United States illegally after removal in violation of 8 U.S.C. § 1326. The district *2 Case: 10-50533 Document: 00511421103 Page: 2 Date Filed: 03/23/2011

No. 10-50533

court enhanced Sanchez’s sentence under U.S.S.G. § 2L1.2(b)(1)(C) based on his having been deported following an aggravated felony, a conviction in Texas for burglary of a vehicle. The court sentenced Sanchez within the guideline range to twenty-four months’ imprisonment and three years’ supervised release. The court stated, at sentencing and in a post-sentencing order, that it would have im- posed the same sentence without the enhancement as a variance from the guide- line range under 18 U.S.C. § 3553(a).

Sanchez argues that, whether his sentence was a guideline sentence or a variance, the district court erred when it applied § 2L1.2(b)(1)(C). Sanchez ac- knowledges that when he was sentenced, his conviction of burglary counted as an aggravated felony for purposes of § 2L1.2. He contends that his 365-day sus- pended sentence for that conviction, however, was revoked and that he was giv- en a new sentence of 270 days, which was less than the one year required under 8 U.S.C. § 1101(a)(43)(G) to be an “aggravated felony.”

Under Gall v. United States, 552 U.S. 38, 50 (2007), this court must first ensure that the court properly calculated the guideline range. See United States v. Delgado-Martinez , 564 F.3d 750, 752-54 (5th Cir. 2009); United States v. Bo- nilla , 524 F.3d 647, 656 (5th Cir. 2008) . Because Sanchez challenged the en- hancement in the district court, we review that court’s application of the guide- lines de novo and its factual findings for clear error. See United States v. Rodri- guez, 602 F.3d 346, 362 (5th Cir. 2010).

This court has rejected the argument Sanchez advances. See United States v. Arriola-Cardona , 184 F. App’x 373, 374-75 (5th Cir. 2006); United States v. Retta-Hernandez , 106 F. App’x 879, 880-83 (5th Cir. 2004). Finding the reason- ing in those cases to be persuasive, we AFFIRM.

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Notes

[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.