United States Court of Appeals

for 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 that the district court plainly erred 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 3, 2022

Lyle W. Cayce

Clerk

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No. 21-50229

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by enhancing his guidelines offense level by eight levels pursuant to U.S.S.G. 

§ 2L1.2(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 sentence imposed was two years 

or more.

Our review is for plain error. Accordingly, Truijillo-Balverde must 

show an error that was 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 sufficient 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 court 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 § 2L1.2(b)(3)(B) enhancement, the probation officer 

stated that a Minnesota state court imposed a 43-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, does not have sufficient indicia of 

reliability. He speculates that “the state court may have reduced [his] 

sentence of imprisonment to less than two years or placed [him] on 

unsupervised probation shortly after sentencing” because he was removed to 

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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. RodriguezBernal, 783 F.3d 1002, 1004-07 (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 of violence or a drug-trafficking offense, and he has 

offered no authority for the proposition that the modified categorical 

approach applies to § 2L1.2(b)(3)(B) enhancements. Therefore, any error in 

failing to apply a modified categorical approach cannot be plain error. See

United States v. Evans, 587 F.3d 667, 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 amending 

§ 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 committed 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.

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