IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20517

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JORGE GONZALEZ-VILLEGAS, also known as Jorge Villegas Gonzalez, also

known as Federico Sanchez Benitez, also known as Jorge Villegas Gonzales,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CR-161-1

Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Jorge Gonzalez-Villegas (Gonzalez) appeals the 46-month sentence

imposed following his guilty-plea conviction for illegal reentry. Gonzalez argues

that the district court erroneously calculated his criminal history score by

assigning points to two expired convictions which should not have been

considered under the Guidelines. Gonzalez contends that he should have been

placed in category III rather than category IV with respect to his criminal

United States Court of Appeals

Fifth Circuit

F I L E D

September 13, 2010

Lyle W. Cayce

Clerk

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.

Case: 09-20517 Document: 00511231403 Page: 1 Date Filed: 09/13/2010
No. 09-20517

history score and that his guidelines range should have been 46-57 months.

Gonzalez further argues that the error is not harmless because the court

downwardly departed and would likely have departed to a category II criminal

history score if the guidelines range had been properly calculated.

The Government argues that there is no relief available to Gonzalez on

appeal. The Government notes that Gonzalez’s written objections regarding his

criminal history score were sustained by the district court and Gonzalez’s

guidelines range was recalculated with a category III criminal history score.

Gonzalez did not file a reply brief.

A review of the record indicates that the district court granted the relief

which Gonzalez now seeks. The district court agreed with Gonzalez at the

sentencing hearing that a 1997 reentry date could not be used as the date the

instant offense was committed. Therefore, the two criminal history points

associated with 1990 and 1991 convictions and two additional criminal history

points assigned under U.S.S.G. § 4A1.1(d) were not counted. The district court

adopted the presentence report as modified with a criminal history category III

and noted that the guidelines range was 46-57 months. Gonzalez’s request for

a downward departure was explicitly rejected by the district court. The district

court imposed a sentence within the guidelines range and commented that the

sentence accomplished the objectives of 18 U.S.C. § 3553(a).

The error of which Gonzalez now complains was resolved in his favor by

the district court. His appeal is wholly without merit and frivolous and therefore

is dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5TH CIR. R. 42.2. Further, counsel is warned that the filing of an appeal

raising a frivolous issue is a needless waste of resources and could result in the

imposition of sanctions. See United States v. Gaitan, 171 F.3d 222, 223-24 (5th

Cir. 1999).

APPEAL DISMISSED; SANCTION WARNING ISSUED.

2

Case: 09-20517 Document: 00511231403 Page: 2 Date Filed: 09/13/2010