1 530 U.S. 466 (2000). United States Court of Appeals

Fifth Circuit



## FILED

March 7, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40167

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

JUAN ARVISO-MATA,

also known as Juan Jose Arviso-Mata

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Juan Arviso-Mata appeals the 70-month sentence imposed

following his guilty-plea conviction of illegally re-entering the

United States after deportation in violation of 8 U.S.C. § 1326.

Arviso presents three issues: (1) whether the district court erred

in calculating Arviso’s criminal history score; (2) whether the

district court’s application of the mandatory Sentencing Guidelines

was harmless error; and (3) whether 8 U.S.C. § 1325(b)(1) and

( b)(2) are unconstitutional in light of Apprendi v. New Je rsey

. 1

We affirm Arviso’s conviction, vacate Arviso’s sentence, and remand

for resentencing.

I

Without the benefit of a plea agreement, Arviso pleaded guilty

to illegally re-entering the United States after being previously2

deported. The presentence report (PSR) established Arviso’s base

offense level at 8. He received a 16-level enhancement because he

was deported previously following a convic tion for transporting

undocumented aliens within the United States. He received a threelevel reduction for acceptance of responsibility. His total

offense level was 21, with a resulting guidelines range of 70 to 87

months imprisonment.

Arviso filed written objections to the PSR. He objected to

the 16-level enhancement on the basis of Blakely v. Washington

. He

also objected to the constitutionality of 8 U.S.C. § 1326(b), but

he conceded that this argument was foreclosed. At sentencing, the

court asked Arviso’s counsel for any objections to the PSR.

Counsel stated: “Your honor, we filed a Blakely objection to the 16

level enhancement for his August, 1994 conviction for purposes of

further appellate review.

. . . Outside of that, Your H onor, we

have no objections to the PSR. The [August 1994] conviction was 10

years ago. We’d ask the Court to consider a sentence at the low

end.” After overruling the single objection, the district court

sentenced Arviso to 70 months imprisonment and three years of

supervised release. Arviso timely appealed. We have jurisdiction

under 28 U.S.C. § 1291.

II

Arviso raises three issues on appeal. First, he contends that

the district court erred in calculating Arviso’s criminal history

score. Second, he contends the district court’s application of the

mandatory Sentencing Guidelines was not harmless error. Third, he

contends that 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional

in light of Apprendi

.

A

Admitting that the issue was not raised below, Arviso contends

that the district court plainly erred in assessing two criminal

history points for his 1993 misdemeanor conviction of illegal entry2 See U.S. S ENTENCING G UIDELINES § 4A1.1(b).

3 United States v. Dodson , 288 F.3d 153, 160 (5th Cir. 2002).

4 United States v. Reveles , 190 F.3d 678, 683 (5th Cir. 1993).

5 United States v. Musquiz , 45 F.3d 927, 931-32 (5th Cir. 1995).

6 United States v. Olano

, 507 U.S. 725, 733 (1993) ( quoting J ohnson v.

Zerbst , 304 U.S. 458, 464 (1938)).

7 United States v. Martinez

, 79 Fed. Appx. 12, 13 (5th Cir. 2003) (noting

that the defendant filed written objections to the presentence report, but at the

sentencing hearing, he “informed the district court that he was not pursuing the

3 into the United States because the sentence was imposed more than

ten years prior to the co mmission of the instant offense. 2 The

government contends that this asserted error, in addition to being

forfeited, was also waived. We disagree.

“Waiver and forfeiture are two different means by which a

defendant may react to an error by the government or the district

court in th e proceedings in a case.” 3 The doctrines are similar,

although distinct. Forfeiture is the failure to make the timely

assertion of a right; waiver is the intentional relinquishment of

a known right. 4 Forfeited errors are reviewed under the plain

error standard; waived errors are entirely unreviewable. 5

Waiver is the “‘intentional relinquishment or abandonment of

a known right.’” 6 There is no evidence, here, that counsel knew of

the sent encing guidelines issue and that he consciously chose to

forego it. The government’s only evidence of waiver is counsel’s

statement that, other than the Blakely objection, he had no problem

with the PSR. This statement, alone, is insufficient to establish

that Arviso’s counsel abandoned a known ri ght. The unpublished

opinions cited by the government are inapposite. In both U nited

States v. Martinez and Uni ted States v. Molina , the defendant

objected, in writing, to the presentence report, but subsequently

affirmatively abandoned the objection befo re the court at

sentencing. 7 We cannot say the same occurred here.written objections to the presentence repo rt, that the presentence report was

correctly written in all respect, and that the district court could rely upon the

presentence report in determining his sentence”); United S tates v. Molina , 82

Fed. Appx. 977, 979 (5th Cir. 2003) (noting that the defend ant “withdrew her

objections to the PSR at the sentencing hearing” and thus they were waived).

8 United States v. V illegas , 404 F.3d 355, 358 (5th Cir. 2005); U nited

States v. Jefferson , 258 F.3d 405, 412 (5th Cir. 2001).

9 See, e.g.

, United States v. Garcia-Cantu

, 302 F.3d 308, 310 (5th Cir.

2002).

10 We have repeatedly held that the PSR “is considered reliable and may be

considered as evidence by the district court when making sentencing

determinations.” United States v. Ramirez , 367 F.3d 274, 277 (5th Cir. 2004);

United States v. Huer ta , 182 F.3d 361, 364 (5th Cir. 1999); U nited States v.

Reyna , 130 F.3d 104, 112 (5th Cir. 1997).

4 Tur ning to the merits, we review the district court’s

applic ation of the sentencing guidelines d e novo

. 8 Because there

was no objection below, Arviso must establish that the district

court plainly erred in application of the guidelines. 9

The district court assessed Arviso two criminal history points

for his 1993 conviction of illegal reentry. According to the

indictment for the instant offense, Arviso was ar rested for the

instant offense on August 3, 2003. According to the PSR, Arviso

pled guilty to the prior offense on March 3, 1993. 10 Under §

4A1.2(e), computation of criminal history points is determined by

the length of the sentence and the date of the imposition or

release of the sentence. Here, Arviso was sentenced to five years

of probation without supervision. There was no term of

imprisonment.

Section 4A1.e(2) governs whether prior convictions count for

criminal history purposes. Under § 4A1.2(e)(1), “[a]ny prior

sentence of imprisonment exceeding one year and one month that was

imposed within fifteen years of the defendant’s commencement of the

instant offense is counted.” This provision is not applicable, as

Arviso’s prior conviction did not result in imprisonment exceeding

one year and one month. Under § 4A1.2(e)(2), “[a]ny other prior11 See United States v. Arnold

, 213 F.3d 89 4, 895-96 (5th Cir. 2000) (in

calculating criminal history sco r e under § 4A1.2(e), sentence imposed when

defendant found guilty and given suspended sentence).

5 sentence that was imposed wit hin ten years of the defendant’s

commencement of the instant offense is counted.” This provision is

not applicable, as the instant offense occurred on August 3, 2003

and the s entence for the prior offense was imposed on March 3,

1993, which is outside the ten-year period. 1 1 Thus, we are left

with § 4A1.2(e)(3), which provides that “[a]ny other sentence not

within the time periods specified above is not counted.” As

Arviso’s March 1993 conviction does not fall within the time

periods specified in § 4A1.2(e)(1) or (2), it should not have

counted.

Our conclusion that the district court erred is not changed by

the subsequent revocation of Arviso’s pro bation on September 13,

1994. Following revocation, Arviso was sentenced to three months

of imprisonment. Section 4A1.2(k)(1) provides that “[in the case

of a prior revocation of probation,

. . . add the original term of

imprisonment to any term of imprisonment imposed upon revocation.

The resulting total is used to compute the criminal history points

for [§ 4A1.1].” Here, the original term of imprisonment was zero

months; the additional term was three months.

Section 4A1.2(k)(2)(B) explains how the new term of

imprisonment affects the counting of criminal history points under

§ 4A1.2(e). If the total term of imprisonment exceeds one year and

one month, we are instructed to use “the date of last release from

incarceration on such sentence.” This provision is inapplicable,

as Arviso’s new term of imprisonment was only three months.

Ignoring a provision regarding minors, in all other cases “the date

of the original se ntence” is used. Here, that is March 3, 1993,

which, as discussed previously, is outside the window for

consideration under § 4A1.2(e) and § 4A1.1(b). The district court12 125 S.Ct. 738 (2005).

1 3 United States v. Martinez-Lugo

, 411 F.3d 597, 600 (5th Cir.), cert.

denied , 126 S.Ct. 464 (2005); see also Booker , 125 S.Ct. at 768-79.

14 See United States v. Walters , 418 F.3d 461, 464 (5th Cir. 2005).

15 See United States v. Pineiro

, 410 F.3d 282, 284-85 (5th Cir. 2005);

United States v. Garza , 429 F.3d 165, 170-71 (5th Cir. 2005) ( Booker error).

6 plainly e rred in considering Arviso’s March 1993 conviction for

purposes of enhancing his criminal history score.

B

Second, Arviso contends the district court erred by applying

the mandatory sentencing guidelines, in violation of United States

v. Booker

. 12 Technically, the erroneous application of the

guidelines as ma ndatory is a “ F anfan error.” 13 The government

concedes that Arviso preserved his Fanfan error for appeal and that

the issue is reviewed for harmless error. 14 The government contends

that the error is harmless because the court imposed a “reasonable”

sentence at the law end of the guidelines range. However, the

government cannot carry is arduous burden of showing that the

district court would not have sentenced Arviso differently under an

advisory guidelines system. 15

C

Finally, Arviso contends that 8 U.S.C. § 1326 is

unconstitutional. As he concedes, this argument is foreclosed by

Almendarez-Torres v. United States

, which this Court must follow

“unless and until the Supreme Court itself determines to overrule

it.”

III

Accordingly, the judgment of conviction is AFFIRMED. We

VACATE Arviso’s sentence and REMAND to the di strict court for

resentencing.7

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.