United States v. Puildo-Islas , 376 F. App'x 418 ( 2010 )

Case: 08-41287 Document: 00511093783 Page: 1 Date Filed: 04/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 28, 2010
No. 08-41287
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JORGE PUILDO-ISLAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:08-CR-766-ALL
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Jorge Puildo-Islas appeals the 37-month sentence he received for his guilty
plea conviction to being found unlawfully in the United States after having been
deported following a felony conviction. Puildo-Islas argues that the district court
reversibly erred by applying the eight-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(C). Puildo-Islas argues that, because there is no information in the
record regarding whether Puildo-Islas appealed his January 26, 2006, drug
convictions, the government failed to prove that his subsequent drug conviction,
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 08-41287
on May 10, 2007, was committed after his January 26, 2006, convictions were
final, as required under 21 U.S.C. § 844(a). Puildo-Islas also argues that his
May 10, 2007, conviction was not punishable as a felony recidivist possession
under § 844(a) because the government failed to prove that the conviction was
secured in compliance with strict procedural requirements comparable to those
in 21 U.S.C. § 851.
Puildo-Islas concedes that review is for plain error because he failed to
object to the enhancement in the district court. See United States v.
Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir. 2007). To show plain error,
Puildo-Islas must show a forfeited error that is clear or obvious and that affects
his substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
If he makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.Puildo-Islas’s arguments regarding the finality of his January 26, 2006,
convictions are unavailing. The record indicates that the government introduced
the judgments for Puildo-Islas’s January 26, 2006, and May 10, 2007, drug
convictions, that approximately one year passed between his January 26, 2006,
convictions and the commission of his 2007 offense, and that Puildo-Islas has not
asserted that he appealed his January 26, 2006, convictions, or otherwise sought
discretionary review. Ordinarily, it is the government’s burden to show that a
previous conviction was “final” for the purposes of § 844(a) and where the record
is silent, we will not assume finality absent the passage of a substantial amount
of time. See United States v. Andrade-Aguilar, 570 F.3d 213, 217-18 & n.6 (5th
Cir. 2009). Under Florida law, Puildo-Islas had thirty days to appeal his
conviction to the Florida appellate courts. See Fla. R. App. P. 9.140(b)(3).
Pursuant to Supreme Court Rule 13(1), a petition for a writ of certiorari to the
United States Supreme Court “seeking review of a judgment of a lower state
court that is subject to discretionary review by the state court of last resort is
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No. 08-41287
timely when it is filed with the Clerk within 90 days after entry of the order
denying discretionary review.” Here, unlike in Andrade-Aguilar, where only 115
days passed between the prior judgement of conviction and the subsequent
offense, the passage of 362 days is enough to establish that the prior conviction
was “final” for the purposes of § 844(a). See 570 F.3d at 217-18 & n.6.
Puildo-Islas’s arguments concerning § 851 are also unavailing. Although
he indicates that his argument concerning § 851 “appears” to be foreclosed by
this court’s decision in United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th
Cir. 2008), he also contends that his argument differs from the one rejected in
Cepeda-Rios. Specifically, he argues that his later possession conviction does not
qualify as an aggravated felony because there has been no showing that a state
prosecutor prosecuting that case invoked procedures equivalent to those set out
in § 851. As we noted in Cepeda-Rios, “the relevant inquiry under the
sentencing guidelines is whether the crime is punishable under § 844(a).” 530
F.3d at 336 n.11 (emphasis in original). The government satisfied its burden of
proof in that regard.
The judgment of the district court is AFFIRMED.
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