United States v. Melendez-Davila

United States Court of Appeals
for the Fifth Circuit

No. 19-50987

United States of America,

Plaintiff—Appellee,

versus

Roel Gilberto Melendez-Davila,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-01780

Before Clement, Ho, and Duncan, Circuit Judges.
Per Curiam:*
Roel Gilberto Melendez-Davila pleaded guilty to illegal reentry under
8 U.S.C. § 1326(a). At sentencing, the district court imposed a four-level
enhancement under U.S.S.G. § 2L.1.2(b)(3)(D), which applies if the
defendant committed a felony after his first removal. The district court relied
on Melendez-Davila’s Kansas conviction for conspiracy to commit

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 3, 2020

Lyle W. Cayce
Clerk
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aggravated escape from custody, for which he was sentenced to eight
months’ imprisonment and twelve months’ probation. See Kan. Stat.
Ann. §§ 21-5911(b)(1)(A), 21-5302. Melendez-Davila did not object to this
enhancement. After assessing other enhancements that Melendez-Davila
does not challenge on this appeal, the district court imposed a sentence of
forty-six months, at the lower end of the guideline range of forty-six to fifty-
seven months.
Melendez-Davila makes two arguments, both raised for the first time
on appeal. First, he argues that 8 U.S.C. § 1326(a) is unconstitutional. He
correctly concedes that this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), but he presents the issue to preserve
it for further possible review. Second, he argues that the district court plainly
erred in assessing an enhancement for a felony conviction because his
previous Kansas conviction was not punishable by more than one year in
prison. Finding no plain error, we affirm.
We review challenges to Guidelines enhancements raised for the first
time on appeal for plain error. See United States v. Chavez-Hernandez,
671 F.3d 494, 497 (5th Cir. 2012). To rise to the level of plain error, a “legal
error must be clear or obvious, rather than subject to reasonable debate.”
Puckett v. United States, 556 U.S. 129, 135 (2009). Accordingly, “[t]here is
no plain error if the legal landscape at the time showed the issue was disputed,
even if . . . the district court turns out to have been wrong.” United States v.
Rodriguez-Parra, 581 F.3d 227, 230 (5th Cir. 2009). “We ordinarily do not
find plain error when we have not previously addressed an issue.” United
States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009) (quoting United States v.
Lomas, 304 F. App’x 300, 301 (5th Cir. 2008)).
The Guidelines define a “felony” as “any federal, state, or local
offense punishable by imprisonment for a term exceeding one year.”
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U.S.S.G. § 2L1.2 cmt. 2. This court looks to the maximum statutory term of
imprisonment, rather than the length of the defendant’s actual sentence, in
determining whether to classify an offense as a felony. See United States v.
Rivera-Perez, 322 F.3d 350, 352 (5th Cir. 2003).
Kansas criminal statutes do not specifically prescribe maximum
penalties. See United States v. Brooks, 751 F.3d 1204, 1205–06 (10th Cir.
2014) (describing Kansas’s “rather unusual criminal sentencing scheme”).
Rather, under the Kansas sentencing guidelines, a sentence is determined by
two factors: the severity level of the crime of conviction—which is provided
by the statute of conviction—and the offender’s criminal history. See Kan.
Stat. Ann. § 21-6804. Each sentence is imposed based on a two-
dimensional grid, much like the federal sentencing table. “The grid’s vertical
axis is the crime severity scale which classifies current crimes of conviction.
The grid’s horizontal axis is the criminal history scale which classifies
criminal histories.” Id. § 21-6804(c).
Melendez-Davila’s conviction for conspiracy to commit aggravated
escape from custody is a level ten offense. See id. §§ 21-5911(c)(2)(A), 21-
5302(d)(1). His criminal history classification was “level E.” Kansas’s
sentencing grid gave the court discretion to sentence Melendez-Davila to a
term of imprisonment ranging from seven to nine months. See id. § 21-6804.
If Melendez-Davila’s criminal history was “level A,” however, he would
have faced up to thirteen months’ imprisonment for his level ten offense. See
id.
Melendez-Davila argues that his Kansas conviction should not be
classified as a “felony” because his criminal history and offense severity only
exposed him to a maximum penalty of nine months’ imprisonment, and thus
he did not commit an offense “punishable by imprisonment for a term
exceeding one year.” U.S.S.G. § 2L1.2 cmt. 2. In support, Melendez-Davila
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points to Brooks, 751 F.3d 1204 and United States v. Haltiwanger, 637 F.3d 881
(8th Cir. 2011), which held that when determining the maximum sentence of
imprisonment a defendant could have received under Kansas law, “the
hypothetical possibility that some recidivist defendants could have faced a
sentence of more than one year is not enough to qualify [the defendant’s]
conviction as a felony.” Brooks, 751 F.3d at 1211 (quoting Haltiwanger,
637 F.3d at 884). Instead, “the maximum amount of prison time a particular
defendant could have received controls.” Id. at 1213; see also Haltiwanger,
637 F.3d at 884.
We need not decide whether the district court erred, for any error
certainly was not plain error. Although other circuits have addressed this
aspect of Kansas’s sentencing scheme, it is an issue of first impression for
this court. “We ordinarily do not find plain error when we have not
previously addressed an issue.” Evans, 587 F.3d at 671 (quotation omitted).
To the contrary, we have previously rejected similar arguments in multiple
unpublished opinions. See United States v. Colin-Fajardo, 278 F. App’x 340,
341–42 (5th Cir. 2008) (“The focus of the inquiry is on whether the offense
carries a potential sentence of more than one year, rather than on whether an
individual defendant convicted of that offense meets the criteria for a
sentence of more than one year.”); United States v. Cedillos, 191 F. App’x
322, 323–24 (5th Cir. 2006) (similar).
To be sure, these cases relied on United States v. Harp, 406 F.3d 242,
246 (4th Cir. 2005), which interpreted North Carolina’s similar sentencing
structure and was later overruled by a divided en banc Fourth Circuit in
United States v. Simmons, 649 F.3d 237, 241 (4th Cir. 2011). See Simmons,
649 F.3d at 244 (“As in North Carolina, the Kansas sentencing structure ties
a particular defendant’s criminal history to the maximum term of
imprisonment.”) (quotation omitted). And this court has granted several
unopposed motions to vacate and remand for sentencing based on Simmons’s
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reinterpretation of North Carolina’s sentencing scheme. See United States v.
Fajardo-Galvan, 694 F. App’x 327, 329 (5th Cir. 2017) (collecting cases). But
those unpublished Fifth Circuit decisions rejecting similar arguments have
not been disturbed by this circuit. See United States v. Castro-Magama, 465 F.
App’x 370, 372 (5th Cir. 2012) (holding that it was not plain error to follow
Harp after it was overruled by Simmons or follow Fifth Circuit cases based on
Harp). Thus, we reach the same conclusion as Castro-Magama: “[W]e
cannot say, in light of the ‘legal landscape,’ that the district court’s
application of the [§ 2L.1.2(b)(3)(D)] enhancement was clear or obvious
error.” 465 F. App’x at 372 (quoting Rodriguez-Parra, 581 F.3d at 230). See
also United States v. Recinos-Hernandez, 772 F. App’x 115, 116–17 (5th Cir.
2019) (reaching a similar conclusion for a Washington state conviction based
on an unpublished Fifth Circuit opinion even though it conflicted with a
subsequent Ninth Circuit opinion); United States v. Guerrero–Robledo,
565 F.3d 940, 946 (5th Cir. 2009) (“It certainly is not plain error for the
district court to rely on an unpublished opinion that is squarely on point.”).
Melendez-Davila also argues that the Supreme Court’s decision in
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), establishes that the district
court plainly erred. Not so. That case dealt with the distinct question of
whether a state conviction would qualify as a federal felony under the
Immigration and Nationality Act—not how to determine a maximum
sentence under Kansas law. To agree with Melendez-Davila, we would
therefore have to extend Carachuri-Rosendo. But “[a]n error is not plain
under current law if a defendant’s theory requires the extension of
precedent.” United States v. Lucas, 849 F.3d 638, 645 (5th Cir. 2017)
(quoting United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010)).
We affirm.
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