IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40091

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

LUIS ALBERTO SEPULVEDA-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 conviction of being found unlawfully present in the United States following deportation. First, he claims that the district court plainly erred in determining that 

his Massachusetts drug-distribution conviction warranted a 16-level 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 21, 2015

Lyle W. Cayce

Clerk

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No. 14-40091

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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 include a transfer 

of a controlled substance to another without receiving remuneration and thus 

does not satisfy the guideline’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 guideline, is warranted regardless 

of whether the conviction for that offense required proof of remuneration or 

commercial 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. United 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 cocainetrafficking offense to his drug-distribution offense. He contends that there is 

no caselaw from this court as to the proper application of U.S.S.G. § 4A1.2(a)(2) 

where concurrent sentences are imposed with identical terms of imprisonment 

and that the district court recognized that the guideline was silent as to the 

proper method for assigning points under those circumstances. In light of the 

alleged ambiguity in the guideline, Sepulveda-Uribe urges that the rule of lenity should be applied to yield the lesser sentence.

Because Sepulveda-Uribe preserved the issue for appeal, we review the 

district court’s application of the guidelines 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-trafficking conviction qualifies for a 16-level enhancement under § 2L1.2 only if the conviction received 

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criminal-history points. § 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 sentences 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 guideline provides no specific instruction as 

to the assessment of points if the concurrent sentences were identical.

The rule of lenity requires an ambiguous guideline to be interpreted in 

favor of a defendant only if, after consideration of the provision’s “text, structure, 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) (internal 

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 guideline does not present a 

grievous ambiguity. Based on the directive to use the longer sentence, it can 

be inferred that where 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 made before reallocating the criminal history 

points imply that it did just that. In light of the guideline’s clear directive to

apply criminal-history points to “the longest sentence of imprisonment if concurrent 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.

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