United States v. Florez-Florez , 74 F. App'x 363 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 22, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-41796
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NERLIN NOEL FLOREZ-FLOREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-540-1
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Nerlin Noel Florez-Florez appeals his sentence following a
guilty-plea conviction for illegal reentry into the United States
by a previously deported alien in violation of 8 U.S.C. § 1326(a)
and (b). He argues that the district court erred in assessing two
criminal history points for a prior attempted robbery conviction
while he was a juvenile. Based upon our review of the record, we
*
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this opinion should not be published and is not precedent except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.
conclude that the district court did not err in assessing these
criminal history points because Florez did not present evidence to
the district court indicating that he was released from custody for
this offense more than five years before he was arrested for the
instant offense.1 We do not consider facts that were not presented
to the district court.2
Florez also argues that the district court erred by assessing
a criminal history point for his prior conviction for “fare-
beating,” or avoiding payment of a transportation fare. Although
this offense is not specifically listed as an excluded offense
under Guideline § 4A1.2(c)(1), we conclude that this offense is
similar to a listed offense and that the district court erred by
not excluding it.3
The erroneous inclusion of this single criminal history point
increased Florez’s criminal history category from III to IV, which
1
See U.S.S.G. § 4A1.1(b) & cmt. 2; § 4A1.2(d)(2)(A) & cmt. 7.
2
Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th
Cir. 1999) (explaining that we may not consider new evidence
furnished for the first time on appeal or facts which were not
before the district court at the time of the challenged ruling);
United States v. Alford, 142 F.3d 825, 832 (5th Cir. 1998) (holding
that the district court may adopt facts contained in the PSR
without further inquiry if the facts have an adequate evidentiary
basis and the defendant does not present rebuttal evidence).
3
See United States v. Hardeman, 933 F.2d 278, 280-81 (5th
Cir. 1991) (describing analysis of similar offenses under §
4A1.2(c)(1)); see also United States v. Sanders, 205 F.3d 549, 553-
54 (2d Cir. 2000) (applying Hardeman factors and concluding “fare-
beating” is an excludable offense).
-2-
in turn increased the applicable range of imprisonment and
therefore resulted in a sentence outside of the correct range.
Therefore, we vacate his sentence and remand this case to the
district court for resentencing consistent with this opinion.
SENTENCE VACATED; REMANDED FOR RESENTENCING.
-3-