IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-41110

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

FRANCISCO ALEMAN, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:16-CR-629-1

Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Francisco Aleman appeals the sentence imposed by 

the district court following his guilty plea conviction. For the following reasons, 

we affirm.

I. Facts & Procedural History

Aleman pled guilty, pursuant to a plea agreement, to possession with 

intent to distribute 100 kilograms or more of marijuana, in violation of 21 

 

* 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

December 17, 2018

Lyle W. Cayce

Clerk

 Case: 17-41110 Document: 00514764458 Page: 1 Date Filed: 12/17/2018
No. 17-41110

2

U.S.C. § 841(a)(1), (b)(1)(B). The plea agreement did not contain a waiver of 

appeal. The presentence report (PSR) indicated that the offense occurred on 

April 20, 2016, when border patrol agents observed six individuals carry 

bundles across the Rio Grande River and approach a parked truck after 

entering the United States. When agents approached, the individuals dropped 

the bundles and fled. Aleman, who was driving the truck, attempted to drive 

away but agents intercepted and arrested him. Agents ultimately determined

that the bundles contained a total of approximately 156.82 kilograms of 

marijuana. 

On August 1, 2016, Aleman, who suffers from a variety of mental and 

physical health issues,1 moved for pretrial release on bond to seek medical 

treatment. His motion for release was granted and he was released on August 

3, 2016, on an unsecured $25,000 bond. The district court issued a warrant for 

Aleman’s arrest on December 1, 2016, when he failed to appear in court for a 

scheduled pretrial conference. Investigators with the Alamo Police 

Department found and arrested him eight months later on August 2, 2017.

Aleman entered a guilty plea on August 3, 2017, attributing his 

abscondence to his mental and physical illnesses. In calculating his guidelines 

range, the PSR assessed a base offense level of 24 pursuant to U.S.S.G. 

§ 2D1.1(c)(8) because Aleman was responsible for at least 100 but less than 400 

kilograms of marijuana. Aleman received a total of two criminal history points, 

including one point for a 2010 misdemeanor conviction under TEX.PENAL CODE

§ 38.02(d) for failure to identify as a fugitive from justice, for which he was 

sentenced to 15 days in custody. His criminal history score of two corresponded 

to a criminal history category of II. Aleman’s guidelines range was restricted 

 

1 According to the record, Aleman suffers from cancer, HIV, and various other mental 

and physical illnesses and ailments. 

 Case: 17-41110 Document: 00514764458 Page: 2 Date Filed: 12/17/2018
No. 17-41110

3

to 60 to 71 months of imprisonment because his conviction carried a five-year 

statutory minimum prison term. See 21 U.S.C. § 841(b)(1)(B); 

U.S.S.G. § 5G1.1(c)(2).

Aleman filed objections to the PSR, including an objection to the criminal 

history point assessed for his 2010 Texas misdemeanor conviction for failure 

to identify as a fugitive from justice. The district court overruled Aleman’s 

objections, adopted the PSR without change, and sentenced him to 60 months 

of imprisonment and four years of supervised release. Aleman appealed. 

II. Standard of Review

“Where a defendant preserves error by objecting at sentencing, as 

[Aleman] did here, the court’s findings of fact are reviewed for clear error [and]

its application of the Guidelines, de novo.” United States v. Mendez-Henriquez, 

847 F.3d 214, 218 (5th Cir. 2017).

III. Discussion

On appeal, Aleman argues that the district court erred by assessing a 

criminal history point for his prior misdemeanor conviction of failure to 

identify as a fugitive from justice under § 38.02(d). See TEX. PENAL CODE § 

38.02(d)(2). The parties do not dispute the facts underlying Aleman’s previous 

§ 38.02(d) offense—he had an outstanding arrest warrant when he was stopped

by a police officer who had lawfully detained him, and he gave a false name to 

the officer in an attempt to avoid being apprehended. See TEX. PENAL CODE § 

38.02(d)(2). He received a 15-day jail sentence for the misdemeanor conviction. 

Sentences for misdemeanor offenses are counted in calculating a 

defendant’s criminal history score, except as provided in U.S.S.G. § 4A1.2(c)(1) 

and (2). § 4A1.2(c); United States v. Reyes-Maya, 305 F.3d 362, 366 (5th Cir. 

2002). Sentences for offenses listed under § 4A1.2(c)(1) and “offenses similar to 

them, by whatever name they are known, are counted only if (A) the sentence 

 Case: 17-41110 Document: 00514764458 Page: 3 Date Filed: 12/17/2018
No. 17-41110

4

was a term of probation of more than one year or a term of imprisonment of at 

least thirty days, or (B) the prior offense was similar to an instant offense.”2 

§ 4A1.2(c)(1); accord Reyes-Maya, 305 F.3d at 366. 

Aleman’s specific argument here is that his misdemeanor conviction 

under § 38.02(d) is similar to the exempted offense of providing “false 

information to a police officer,” one of the listed offenses under § 4A1.2(c)(1), 

and thus should not have been counted in the calculation of his criminal history 

score. To determine whether a defendant’s prior offense is similar to an offense 

listed in § 4A1.2(c)(1), this court uses an approach outlined in United States v. 

Hardeman, 933 F.2d 278, 281 (5th Cir. 1991), which involves consideration of 

the following factors:

[i] a comparison of punishments imposed for the listed and unlisted 

offenses, [ii] the perceived seriousness of the offense as indicated 

by the level of punishment, [iii] the elements of the offense, [iv] the 

level of culpability involved, and [v] the degree to which the 

commission of the offense indicates a likelihood of recurring 

criminal conduct.

This court’s opinion in Reyes-Maya instructs that a conviction under 

§ 38.02 for failure to identify is similar to providing “false information to a 

police officer” under § 4A1.2(c)(1) when the failure-to-identify offense involves 

the “refus[al] to give [one’s] name, date of birth, or address” to an officer when 

arrested. 305 F.3d at 367–68. In that case, the panel also determined that a 

Texas conviction for criminal mischief was similar to the offense of disorderly 

 

2 The government includes in its appellate brief a discussion of whether Aleman’s § 

38.02(d)(2) misdemeanor offense is not excludable under § 4A1.2(c)(1) because it is similar to 

his “instant offense.” U.S.S.G. § 4A1.2(c)(1); see United States v. McDonald, 106 F.3d 1218, 

1220 (5th Cir. 1997). The district court, however, did not address this issue as an alternative 

basis for assessing the criminal history point. Aleman, likewise, does not brief the issue on 

appeal. For these reasons, we decline to reach the issue here. See Reyes v. Manor Indep. Sch. 

Dist., 850 F.3d 251, 256 (5th Cir. 2017) (“We do not consider issues brought for the first time 

on appeal.”).

 Case: 17-41110 Document: 00514764458 Page: 4 Date Filed: 12/17/2018
No. 17-41110

5

conduct under § 4A1.2(c)(1). See id. at 366; see TEX. PENAL CODE § 28.03 

(criminal mischief). There, the court noted that “[g]iven the similarity in 

punishments between [Reyes-Maya’s] criminal mischief conviction and 

disorderly conduct and that the small fine [he] received suggests low 

culpability and low predictiveness of future criminal conduct, we believe that 

the district court erred in not excluding this conviction from [his] criminal 

history score.” Id. at 368.

The issue in this case, however, is whether a failure-to-identify offense 

is similar to providing “false information to a police officer” under § 4A1.2(c)(1) 

when the failure-to-identify offense was a Class A misdemeanor that entailed 

(1) the intentional use of a false name, rather than the mere refusal to give 

identifying information and (2) the existence of an outstanding arrest warrant. 

See § 38.02(b), (d)(2). A review of this court’s unpublished opinions suggests 

that it is not. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) 

(“An unpublished opinion issued after January 1, 1996 is not controlling 

precedent, but may be persuasive authority.”).

In United States v. Arroyos-Fernandez, 286 F. App’x 881, 884–86 (5th 

Cir. 2008), the prior conviction at issue was a misdemeanor conviction under 

18 U.S.C. § 1028(a)(4) for possession of a false identification document with the 

intent to use the document to defraud the United States. In that case, ArroyosFernandez committed the offense when he showed Immigration and Customs 

Enforcement agents a false driver’s license in an attempt to demonstrate that 

he was in the United States legally. Id. at 884. This court evaluated whether 

the § 1028(a)(4) conviction was similar to providing “false information to a 

police officer” under § 4A1.2(c)(1). Id. at 885. We reasoned that the two 

offenses were not similar. A § 1028(a)(4) violation required the calculated act 

of obtaining a false document in advance of any confrontation with law 

 Case: 17-41110 Document: 00514764458 Page: 5 Date Filed: 12/17/2018
No. 17-41110

6

enforcement, whereas a violation of § 38.02(b)3 did not require such 

forethought because that section could be violated merely by verbally giving 

false identifying information to an officer spontaneously. Id. at 886. We

concluded that Arroyos-Fernandez’s § 1028(a)(4) conviction was not similar to 

a § 38.02(b) offense and thus also not similar to providing “false information to 

a police officer” under § 4A1.2(c)(1). Id. 

In United States v. Moreno, 460 F. App’x 317, 321 (5th Cir. 2012), we 

distinguished Reyes-Maya’s determination that a Texas conviction for criminal 

mischief was similar to the offense of disorderly conduct under § 4A1.2(c)(1). 

See Reyes-Maya, 305 F.3d at 366. We noted that Moreno’s criminal mischief 

conviction was a Class A misdemeanor, he was sentenced to 29 days of 

imprisonment (as opposed to the $182.50 fine assessed for Reyes-Maya’s 

criminal mischief conviction), and his offense involved between $500 and $1500

in property damage caused when he struck a vehicle’s door with a car jack. 

Moreno, 460 F. App’x at 321. 

In United States v. DeLeon-Garcia, 119 F. App’x 605, 607 (5th Cir. 2004), 

we similarly distinguished due to the lesser punishment assessed for ReyesMaya’s criminal mischief conviction ($182.50 fine) relative to the 20-day jail 

sentence DeLeon-Garcia received for his criminal mischief conviction. We 

further reasoned that the conduct underlying DeLeon-Garcia’s criminal 

mischief offense, throwing a bottle through an automobile’s rear window while 

it was being driven, entailed the destruction of property and endangering 

another’s safety and reflected high culpability. Id. We concluded that DeLeon-

 

3 For guidance on defining § 4A1.2(c)(1)’s generic offense of providing “false 

information to a police officer,” this court looked to the elements and punishment range of a 

failure-to-identify offense under § 38.02(b). Id. at 885–86. Thus, our analysis contemplated 

that an offense under § 38.02(b) was similar to providing “false information to a police officer” 

under § 4A1.2(c)(1). See id. 

 Case: 17-41110 Document: 00514764458 Page: 6 Date Filed: 12/17/2018
No. 17-41110

7

Garcia’s criminal mischief conviction, when considered in the context of his 

recent criminal history, further indicated a likelihood of recurring conduct. Id.

Here, Aleman’s conviction under § 38.02(d)(2) was a Class A 

misdemeanor and was therefore punishable by confinement in jail for up to one 

year and/or a fine not to exceed $4,000. See § 38.02(d)(2); TEX. PENAL CODE

§ 12.21. Aleman’s actual sentence was 15 days of imprisonment, which was 

greater than the $182.50 fines considered in Reyes-Maya, and less than but 

close to the 20-day, 20-day, and 29-day jail sentences considered, respectively, 

in Arroyos-Fernandez, DeLeon-Garcia, and Moreno. The elements of Aleman’s 

§ 38.02(d)(2) offense make it more serious than those considered in Reyes-Maya

and Arroyos-Fernandez. This is because § 38.02(d)(2), in addition to requiring 

the intentional giving of false identifying information, requires that the 

perpetrator be a “fugitive from justice” based on an outstanding arrest 

warrant. § 38.02(d)(2); see also § 38.01(5). Consideration of these factors 

supports the conclusion that Aleman’s § 38.02(d)(2) offense is not similar to the 

§ 4A1.2(c)(1) offense of providing false information to a police officer. See 

Hardeman, 933 F.2d at 281.

Aleman’s case is distinguishable from Reyes-Maya since Aleman did not 

merely refuse to identify himself but instead gave a false name to a police 

officer while a warrant was outstanding for his arrest. 305 F.3d at 367. 

Moreover, Aleman’s § 38.02(d)(2) offense is only one of his attempts to evade 

law enforcement to avoid being arrested for a crime he had previously 

committed. His current offense involved yet another attempt to evade 

authorities by attempting to flee near the border and followed by his 

abscondence while on pretrial bail. Aleman’s repeated decisions to evade law 

enforcement do not lend credence to the conclusion that his actions reveal a 

“low predictiveness of future criminal conduct.” Reyes-Maya, 305 F.3d at 368. 

 Case: 17-41110 Document: 00514764458 Page: 7 Date Filed: 12/17/2018
No. 17-41110

8

In light of this analysis, we conclude that Aleman’s prior Texas 

misdemeanor § 38.02(d)(2) offense of failure to identify as a fugitive from 

justice is not similar to the offense of providing “false information to a police 

officer” as listed under U.S.S.G. § 4A1.2(c)(1), and thus was not exempt under 

this section of the guidelines from being used to calculate Aleman’s criminal 

history score. The district court’s calculation of Aleman’s criminal history score 

was correct.

IV. Conclusion

For the foregoing reasons, Aleman’s sentence is affirmed.

 Case: 17-41110 Document: 00514764458 Page: 8 Date Filed: 12/17/2018