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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-41287

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JORGE PUILDO-ISLAS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:08-CR-766-ALL

Before JOLLY, WIENER, and ELROD, Circuit Judges. 

PER CURIAM:*

Jorge Puildo-Islas appeals the 37-month sentence he received for his guilty

plea conviction to being found unlawfully in the United States after having been

deported following a felony conviction. Puildo-Islas argues that the district court

reversibly erred by applying the eight-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(C). Puildo-Islas argues that, because there is no information in the

record regarding whether Puildo-Islas appealed his January 26, 2006, drug

convictions, the government failed to prove that his subsequent drug conviction,

United States Court of Appeals

Fifth Circuit

F I L E D

April 28, 2010

Lyle W. Cayce

Clerk

Case: 08-41287 Document: 00511093783 Page: 1 Date Filed: 04/28/2010
No. 08-41287

2

on May 10, 2007, was committed after his January 26, 2006, convictions were

final, as required under 21 U.S.C. § 844(a). Puildo-Islas also argues that his

May 10, 2007, conviction was not punishable as a felony recidivist possession

under § 844(a) because the government failed to prove that the conviction was

secured in compliance with strict procedural requirements comparable to those

in 21 U.S.C. § 851. 

Puildo-Islas concedes that review is for plain error because he failed to

object to the enhancement in the district court. See United States v.

Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir. 2007). To show plain error,

Puildo-Islas must show a forfeited error that is clear or obvious and that affects

his substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

If he makes such a showing, this court has the discretion to correct the error but

only if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings. See id.

Puildo-Islas’s arguments regarding the finality of his January 26, 2006,

convictions are unavailing. The record indicates that the government introduced

the judgments for Puildo-Islas’s January 26, 2006, and May 10, 2007, drug

convictions, that approximately one year passed between his January 26, 2006,

convictions and the commission of his 2007 offense, and that Puildo-Islas has not

asserted that he appealed his January 26, 2006, convictions, or otherwise sought

discretionary review. Ordinarily, it is the government’s burden to show that a

previous conviction was “final” for the purposes of § 844(a) and where the record

is silent, we will not assume finality absent the passage of a substantial amount

of time. See United States v. Andrade-Aguilar, 570 F.3d 213, 217-18 & n.6 (5th

Cir. 2009). Under Florida law, Puildo-Islas had thirty days to appeal his

conviction to the Florida appellate courts. See Fla. R. App. P. 9.140(b)(3).

Pursuant to Supreme Court Rule 13(1), a petition for a writ of certiorari to the

United States Supreme Court “seeking review of a judgment of a lower state

court that is subject to discretionary review by the state court of last resort is

Case: 08-41287 Document: 00511093783 Page: 2 Date Filed: 04/28/2010
No. 08-41287

3

timely when it is filed with the Clerk within 90 days after entry of the order

denying discretionary review.” Here, unlike in Andrade-Aguilar, where only 115

days passed between the prior judgement of conviction and the subsequent

offense, the passage of 362 days is enough to establish that the prior conviction

was “final” for the purposes of § 844(a). See 570 F.3d at 217-18 & n.6. 

Puildo-Islas’s arguments concerning § 851 are also unavailing. Although

he indicates that his argument concerning § 851 “appears” to be foreclosed by

this court’s decision in United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th

Cir. 2008), he also contends that his argument differs from the one rejected in

Cepeda-Rios. Specifically, he argues that his later possession conviction does not

qualify as an aggravated felony because there has been no showing that a state

prosecutor prosecuting that case invoked procedures equivalent to those set out

in § 851. As we noted in Cepeda-Rios, “the relevant inquiry under the

sentencing guidelines is whether the crime is punishable under § 844(a).” 530

F.3d at 336 n.11 (emphasis in original). The government satisfied its burden of

proof in that regard. 

The judgment of the district court is AFFIRMED.

Case: 08-41287 Document: 00511093783 Page: 3 Date Filed: 04/28/2010