United States v. Juan Posadas , 544 F. App'x 478 ( 2013 )

Case: 12-41418 Document: 00512425748 Page: 1 Date Filed: 10/31/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 31, 2013
No. 12-41418
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN JOSE POSADAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:12-CR-214-1
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
Juan Jose Posadas appeals the 51-month sentence imposed for his
conviction for illegal reentry. He contends that the district court plainly erred
by assessing criminal history points under U.S.S.G. § 4A1.1(c) for his prior 90-
day suspended sentences for driving with a suspended license.
Since Posadas did not object to the criminal history points in the district
court, his claim of error is reviewed for plain error. See United States v. Henry,
288 F.3d 657, 664 (5th Cir. 2002). A defendant may receive one criminal history
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41418 Document: 00512425748 Page: 2 Date Filed: 10/31/2013
No. 12-41418
point for each prior sentence for driving with a suspended license so long as “the
sentence was a term of probation of more than one year or a term of
imprisonment of at least thirty days.” § 4A1.2(c)(1)(A). A totally suspended
sentence “shall be counted as a prior sentence under § 4A1.1(c).” § 4A1.2(a)(3).
Posadas contends that neither of his 90-day suspended sentences
constitutes a 30-day “term of imprisonment” as required by the plain language
of § 4A1.2(c)(1)(A) since each term of imprisonment was totally suspended. For
support, he relies on another subsection of § 4A1.2 that defines a “sentence of
imprisonment” and states, “If part of a sentence of imprisonment was suspended,
‘sentence of imprisonment’ refers only to the portion that was not suspended.”
§ 4A1.2(b)(2).
We rejected this argument in United States v. Olea-Rivera, 318 F. App’x
292, 294 (5th Cir. 2009), by holding that any error was not plain because there
was no precedent in this circuit that supported the defendant’s argument. There
is still no precedent in this circuit that supports this argument. Further, other
circuits have reached divergent conclusions. See United States v. Gonzales, 506
F.3d 940, 945 (9th Cir. 2007); United States v. Morton, 239 F. App’x 798, 804 (4th
Cir. 2007); United States v. Hernandez, 160 F.3d 661, 670-71 (11th Cir. 1998).
Thus, Posadas cannot demonstrate that the district court committed any plain
error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
The district court’s judgment is AFFIRMED.
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