# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 50229 Summary Calendar

**United States of America,** Plaintiff

— Appellee **,**

versus **Maurino Truijillo**

**- Balverde,**  Defendant

— Appellant

**.**

Appeal from the United States District Court for the Western District of Texas USDC No. 2:19

- CR

- 2776

- 1

Before **Jolly, Willett,** and **Engelhardt,** Circuit Judges

. **Per Curiam :**  *
Maurino Truijillo

- Balverde pleaded guilty of illegal reentry into the United States, and he was sentenced within the guidelines range to a 46

- month term of imprisonment and to a three

- year period of supervised release. For the first time on appeal, he contends th at the district court plainly erred

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED February 3, 2022

Lyle W. Ca yce Clerk Case: 21-50229 Document: 00516190326 Page: 1 Date Filed: 02/03/2022No. 21

- 50229

2 by enhancing his guidelines offense level by eight levels pursuant to U.S.S.G. § 2 L 1.2(b)(3)(B) because , after he was ordered removed from the United States for the first time , he engaged in criminal conduct that resulted in a conviction for a felony offense for which the s entence imposed was two years

or more. Our review is for plain error. Accordingly, Truijillo

- Balverde must show an error that wa s clear or obvious and that affected his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009) . We have discretion to correct such an error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id

. In general, a presentence report has suff icient indica of reliability to permit a sentencing court to rely upon it at sentencing. United States v. Ollison , 555 F.3d 152, 164 (5th Cir. 2009). The defendant has the burden of showing that a presentence report is inaccurate. Id. “[A] district cou rt may adopt the facts presented in a [presentence report] without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence.” United States v. Dinh , 920 F .3d 307, 313 (5th Cir. 2019) (emphasis retained; internal quotation marks and citation omitted). In applying the § 2 L 1.2(b)(3)(B) enhancement, t he probation officer stated that a Minnesota state court imposed a 4 3

- month sentence related to Truijillo

- Balverde’s felony drug possession conviction on May 3, 2011, and that, less than two years later, on May 1, 2013, Truijillo

- Balverde was removed to Mexico. Truijillo

- Balverde asserts that this information is internally inconsistent and, therefore, do es not have sufficient indicia of reliability . He speculates that “t he state court may have reduced [his]
sentence of imprisonment to less than two years or placed [him] on

u n supervised probation shortly after sentencing ” b ecause he was removed to Case: 21-50229 Document: 00516190326 Page: 2 Date Filed: 02/03/2022No. 21

- 50229

3 Mexico less than two years after his sentence was imposed

. These contentions are without merit. The phrase “sentence imposed” in § 2L1.2(b)(3)(B) has the same meaning as the phrase “sentence of imprisonment” in U.S.S.G. § 4A1.2 (b) and commentary note 2. It refers to the maximum sentence imposed , and it relates to the sentence pronounced, not the length of time actually served. See § 4A1.2(b)(1) & comment. (n.2) ; see also United States v. Rodriguez

Bernal , 783 F.3d 1002, 1004

- 0 7 (5th Cir. 2015)

. Although any suspended portion of a sentence does not count as part of that sentence , § 4A1.2(b)(2) , Truijillo

- Balverde has not shown that his prior state sentence was suspended. Truijillo

- Balverde asserts that the Government failed to prove that the prior conviction was categorically a qualifying offense

. This contention is likewise without merit. Truijillo

- Balverde’s enhancement was for a felony offense, not a crime o f violence or a drug

- trafficking offense , and h e has off ered no authority for the proposition that the modified categorical approach applies to § 2L1.2(b)(3)(B) enhancements . T herefore, any error in failing to apply a modified categorical approach cannot be plain error. See United States v. Evans , 587 F.3d 66 7, 671 (5th Cir. 2009) (“ We ordinarily do not find plain error when we have not previously addressed an issue. ” (internal quotation marks and citation omitted)) ; see also U.S.S.G. Supp. to App. C, amend. 802 (Reason for Amendment) (stating that, in amendin g § 2L1.2, the Sentencing Commission had abandoned the categorical approach for determining the severity of prior felony offenses in favor of the
sentence

- imposed model )

. Truijillo

- Balverde has not met his burden of showing that the district court committ ed a clear or obvious error in enhancing his sentence under § 2L1.2(b)(3)(B). See Puckett , 556 U.S. at 135 ; see also Rodriguez

- Bernal , 783 F.3d at 1004

- 07. The judgment is **AFFIRMED**

. Case: 21-50229 Document: 00516190326 Page: 3 Date Filed: 02/03/2022