### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 40888 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JOSE DE JESUS MARTINEZ

- GARCIA , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:14

- CR

- 457

Before SMITH, BARKSDALE, and PRADO, Circuit Judges. PER CURIAM: * Jose De Jesus Martinez

- Garcia challenges his 57

- month sentence , imposed after pleading guilty to illegally reentering the United States after deportation , in violation of 8 U.S.C. § 1326(a) and (b) . He claims the distr ict court erred in applying a 16

- level enhancement to his offense level under Sentencing Guideline § 2L1.2(b)(1)( A

) ( requiring enhancement if illegal

-

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4.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

### FILED June 2, 2015 Lyle W. Cayce Clerk Case: 14-40888 Document: 00513062968 Page: 1 Date Filed: 06/02/2015No. 14

- 40888
reentry defendant was previously deported af ter conviction for felony crime of violence )

. The court based the enhancement on Martinez ’ prior North Carolina conviction for in decent liberties with a child , for which he was sentenced to 10

- 12 months’ imprisonment. Martinez claims his prior conviction was not a felony becaus e , under North Carolina’s structured sentencing statute, he was subject to no more than 1 2 months’ imprisonment. See U.S.S.G. § 2L1.2 cmt. n.2 (defining felony as a “ federal, state, or local offense punishable by imprisonment for a term exceeding one year ” ). Although post

- Booker , the Guidelines are advisory only, and a properly preserved objection to an ultimate sentence is reviewed for reasonableness under an abuse

- of

- discretion standard, the district court must still properly calculate the advisory Guidelines

- sentencing range for use in deciding on the sentence to impose. Gall v. United States , 552 U.S. 38, 51 (2007). In that respect, for issues preserved in district court, its application of the Guidelin es is reviewed de novo; its factual findings, only for clear error. E.g. , United States v. Cisneros

- Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). Martinez did not preserve this challenge in district court , however. Therefore, review is only for plain er ror. E.g., United States v. Broussard , 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Martinez must show a forfeited plain ( clear or obvious ) error that affected his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009)

. If he does so , we have the discretion to correct the error , but should do so only if it seriously affects the fairness, integrity, or public reput ation of judicial proceedings. Id

. When Martinez commi tted the North Carolina offense in September 2009 , state law punished indecent liberties with a child as a Class F felony , for which the pre sumptive maximum sentence was 47 months ’ imprisonment for

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- 40888

an offender with a prior record level of V I

. See N.C . Gen. Stat

. A nn. § § 1 4

- 202.1 (2009 ); 15A

- 1340.17(c)

- (d ). T he state court ruled Martinez should be punished under the mitigated range as a Class F felon with a prior record level of I. The mitiga ted range of minimum punishment was 10

- 13 months’ imprisonment. § 15A

- 1340.17(c). The court imp osed a minimum sentence at the bottom of that range, and the corresponding maximum sentence was 1 2 months. Id. § 15A

- 1340.17(c)

- (d). Martinez claims the 1 2

- month maximum determines whether his offense was a felony for purposes of Guideline § 2L1.2( b)(1)(B). The G overnment counters that the 20

- month maximum term of imprisonment for the aggravated

- sentencing range for an offender with a prior record level of I governs. T his issue need not be decided

. T he state court could have sentenced Martinez to a minimum term of 13 months’ imprisonment , for which the corresponding maximum term was 16 months

. E.g., United States v. Selvan

Cupil , 2015 WL 860779, at *5 (5th Cir. 2 Mar. 2015) (“What matters for the felony determination is not the sentence imposed, b ut whether the defendant was eligible for a sentence exceeding a year.”) , petition for cert

. filed ( 17 Mar. 2015) (No. 14

- 8964)

. In other words, t hat the state court sentenced Martinez
to a minimum term of 10 months’ imprisonment is irrelevant. E.g., id. In short, t he district court did not commit clear or obvious error. AFFIRMED.

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