May 20th, 2017

​U.S. Court of Appeals for the Fifth Circuit Opinions
United States v. Enrique-Ascencio

Docket: 16-10274
Opinion Date: May 19, 2017
Judge: James Earl Graves, Jr.
Areas of Law: Criminal Law

After defendant pleaded guilty to illegal reentry after removal, he challenged the application of a 16-level sentencing enhancement under USSG 2L1.2 for a prior drug trafficking conviction. The Fifth Circuit affirmed, holding that defendant's 120-day sentence was a sentence of imprisonment, regardless of whether he served it in whole or in part through the work release program under California Penal Code section 4024.2. Based on his cumulative 485-day sentence, defendant was previously convicted of a felony during a trafficking offense for which the sentence exceeded 13 months. The court also held that, even assuming the district court's reliance on the plea document was error, the error was harmless. Finally, United States v. Garcia-Carrillo, 749 F.3d 376, 378 (5th Cir. 2014), was dispositive of defendant's argument that the court should remand for the district court to determine whether a lesser sentence was appropriate under an amendment to the Guidelines that took effect after the date of his sentence. In Garcia-Carrillo, the court held that it is not plain error for a district court to fail to consider a non-retroactive post-sentencing amendment to the Guidelines, even if it might have affected the sentence imposed by the district court.