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

No. 14

- 40091 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

–

Appellee , v ersus LUIS ALBERTO SEP U LVEDA

- URIBE , Defendant

– Appellant

.

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:13

- CR

- 1398

Before REAVLEY, SMITH, and HAYNES, Circuit Judges. PER CURIAM: * Luis Alberto Sepulveda

- Uribe appeals the sentence imposed on his con

viction of being found unlawfully present in the United States following depor

tation. First, he claims that the district court plainly erred in deter mining that his Massachusetts drug

- distribution conviction warranted a 16

- level

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 21, 2015 Lyle W. Cayce Clerk Case: 14-40091 Document: 00513123100 Page: 1 Date Filed: 07/21/2015No. 14

- 40091

2 enhancement under to U.S.S.G. § 2L1.2(b)(1)(A)(i). He contends that the statute under which he was convicted defines distribution to incl ude a trans fer of a controlled substance to another without receiving remuneration and thus does not satisfy the g uideline’s definition of a drug

- trafficking offense

. In United States v. Martinez

- Lugo, 782 F.3d 198, 204

- 05 (5th Cir. 2015), petition for cert. filed (June 19, 2015) (No. 14

- 10355) , this court held that an enhancement under § 2L1.2(b)(1)(A)(i) for a drug

- trafficking offense, as that term is defined in the commentary to that g uideline, is warranted regardless of whether the conviction for th a t offense required proof of remuneration or

com mercial activity. Thus, Sepulveda

- Uribe has not shown that the district court committed “clear or obvious” error in imposing the enhancement based on his cocaine

- distribution conviction. See Puckett v. Unit ed States , 556 U.S. 129, 135 (2009). Second , Sepulveda

- Uribe maintains that the district court reversibly erred by changing the allocation of the criminal

- history points from his cocaine

traffick ing offense to his drug

- distribution offense. He contends that there is

no case law from this court as to the proper application of U.S.S.G. § 4A1.2(a)(2) whe re concurrent sentences are imposed with identical terms of imprisonment and that the district court recognized that the g uideline was silent as to the proper method for assigning points under those circumstances. In light of the alleged ambiguity in the g uideline, Sepulveda

- Uribe urges t hat the rule of len

ity should be applied to yield the lesser sentence. Because Sepulveda

- Uribe preserved the issue for appe a l, we review the district court’s application of the g uidelines de novo and its factual findings for clear error. United States v. Teran

- Salas , 767 F.3d 453, 457 (5th Cir. 2014), cert. denied , 135 S. Ct. 1892 (2015). A prior drug

- traffick ing conviction quali

fies for a 16

- level enhancement under § 2L1.2 only if the conviction received Case: 14-40091 Document: 00513123100 Page: 2 Date Filed: 07/21/2015No. 14

- 40091

3 criminal

- history poin t s . § 2L1.2(b)(1)(A) . Prior sentences that were imposed on the same day are treated as a single sentence. § 4A1.2(a)(2) (B) . Section 4A1.2(a)(2) instructs that , in applying U.S.S.G. § 4A1. 1 to prior sen tences that are treated as a single sentence, the criminal

- history points should be applied to “ the longest sentence of imprisonment if concurrent sentences were imposed.” § 4A1.2(a)(2)

. But the g uid el ine provides no specific instruc tion as to the assessment of points if the concurrent sentences were identical. The rule of lenity requires an ambiguous g uideline to be interpreted in favor of a defendant only i f , after consideration of the provision’s “ text, struc

ture, history, and purpose , there remains a grievous ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress intended. ” United States v. Castleman , 134 S. Ct. 1405, 1416 (2014) (inte r n al quotation marks and citation omitted); see also United States v. Bustillos

- Pena , 612 F.3d 863, 868

- 69 (5th Cir. 2010). Although we have not interpreted § 4A1.2(a)(2) in this context, the language of the g uideline does not present a griev ous ambiguity . Based on the directive to use the longer sen tence, it can be inferred that whe re the concurrent sentences are identical, the court should assign the points to the prior sentence that will result in the greater sentence. The district court ’s remarks ma de before reallocating the criminal history points imply that it did just that

. In light of the g uideline’s clear directive to apply criminal

- history points to “ the longest sentence of imprisonment if con

current sentences were imposed,” the court did not commit error in reassigning the criminal

- history points to the qualified drug

- trafficking offense. See § 4A1.2(a)(2). AFFIRMED. Case: 14-40091 Document: 00513123100 Page: 3 Date Filed: 07/21/2015