United States v. Olea-Rivera , 318 F. App'x 292 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 31, 2009
No. 08-40769
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN OLEA-RIVERA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:08-CR-227-ALL
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Juan Olea-Rivera (Olea) appeals the 57-month sentence imposed after he
pleaded guilty to being in the United States illegally after deportation. Olea’s
criminal history score included one point for an Alabama conviction of 3rd
Degree Criminal Mischief, for which Olea received a suspended 30-day jail
sentence and 12 months of probation. On appeal, Olea contends only that the
criminal history point should not have been assessed for the criminal mischief
*
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should not be published and is not precedent except under the limited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.
No. 08-40769
conviction. Without that point, his advisory sentencing range would have been
46 to 57 months rather than 57 to 71 months.
Because Olea did not raise this issue in the district court, this court
reviews his contention on appeal only for plain error. United States v. Henry,
288 F.3d 657, 664 (5th Cir. 2002). To show plain error, Olea must show an error
that is clear or obvious and that affected his substantial rights. See United
States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962
(2009). If he makes that showing, this court has the discretion to correct the
error if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. An error is clear or obvious only if it is clear under existing
law, and an alleged error is not clear or obvious if the relevant law is unsettled.
United States v. Salinas, 480 F.3d 750, 756, 759 (5th Cir. 2007).
Olea contends that his criminal mischief offense is “similar to” the offense
of disorderly conduct listed under U.S.S.G. § 4A1.2(c)(1) and that, consequently,
the conviction may not be counted in his criminal history score because he was
not sentenced to “a term of probation of more than one year or a term of
imprisonment of at least thirty days.” Id. We need not decide whether Olea’s
criminal mischief crime is similar to the listed crime of disorderly conduct
because, even if it is, Olea cannot show a clear or obvious error concerning the
effect of his suspended 30-day sentence for criminal mischief.
In order to show plain error regarding the disputed criminal history point,
Olea must demonstrate that it is clear and obvious that his criminal mischief
sentence was not “a term of probation of more than one year or a term of
imprisonment of at least thirty days.” § 4A1.2(c)(1)(A). Olea’s 12-month term
of probation is obviously not “a term of probation of more than one year.”
§ 4A1.2(c)(1)(A). However, Olea’s suspended 30-day jail sentence may meet the
test.
Generally, three criminal history points are awarded “for each prior
sentence of imprisonment” of more than 13 months, and two points are awarded
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No. 08-40769
“for each prior sentence of imprisonment of at least sixty days.” §§ 4A1.1(a)
& (b). As in Olea’s case, a single point is awarded “for each prior sentence not
[already] counted.” § 4A1.1(c) (emphasis added).
The Guideline defining “prior sentence” states: “A conviction for which the
imposition or execution of a sentence was totally suspended or stayed shall be
counted as a prior sentence under § 4A1.1(c).” § 4A1.2(a)(3) (emphasis added).
Although Olea argues that § 4A1.2(b)(2) and the definition of the “sentence of
imprisonment” there should be applied to the definition of “prior sentence” in
§ 4A1.2(a)(3), there is no precedent in this circuit to that effect, and we are not
persuaded to change the “prior sentence” definition. Relief for Olea under plain
error is precluded. See Salinas, 480 F.3d at 756, 759.
AFFIRMED.
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