452 F.3d 352 (5th Cir. 2006), 04-11143, United States v. Lares-Meraz

Docket Nº:04-11143.
Citation:452 F.3d 352
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ignacio LARES-MERAZ, Defendant-Appellant.
Case Date:June 06, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 352

452 F.3d 352 (5th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ignacio LARES-MERAZ, Defendant-Appellant.

No. 04-11143.

United States Court of Appeals, Fifth Circuit.

June 6, 2006

Page 353

Denise B. Williams, Lubbock, TX, for Plaintiff-Appellee.

Helen Miller Liggett, Asst. Federal Public Defender, Lubbock, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas

Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:

Ignacio Lares-Meraz appeals his sentence on the grounds that his constitutional rights were violated under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). During the pendency of his appeal, Lares-Meraz served twelve months' imprisonment, was released, and was deported to his native Mexico. Lares-Meraz remains subject to a three-year term of supervised release, an element of his total sentence. This Court ordered supplemental briefing on the issue of mootness in light of Lares-Meraz's release and deportation. We conclude that Lares-Meraz's appeal is not moot, and because Lares-Meraz expressly concedes that any error in sentencing is harmless and requests affirmance of his sentence, we affirm.

Page 354

I.

Lares-Meraz was indicted for illegal reentry into the United States after prior deportation, a violation of 8 U.S.C. § 1326. He was charged with reentry "on or about March 10, 2004." Lares-Meraz pleaded guilty, and in association with his guilty plea, Lares-Meraz signed a factual resume which stated that he had been found in the United States on November 28, 2003.1 At his guilty plea, Lares-Meraz again affirmed the accuracy of the factual stipulation.

The presentence report ("PSR") reflected that Lares-Meraz entered the United States illegally on February 10, 2002, and accordingly his criminal history calculation included two additional points because the commission of the instant offense was commenced less than two years after Lares-Meraz's prior release for imprisonment for illegal entry. See united States Sentencing Guidelines § 4Al.l(b), (e).2 The PSR also included an additional criminal history point for a prior Colorado conviction of driving while impaired. See id. § 4Al.l(c). Lares-Meraz's PSR calculated a total of seven criminal history points and a criminal history category of IV. These calculations, combined with a total offense level of six, resulted in a guidelines sentencing range of six to twelve months' imprisonment. Lares-Meraz objected to the calculation before the district court under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The court overruled the objection and sentenced him to twelve months' imprisonment and three years' supervised release.

Lares-Meraz argues that the criminal history calculations resulted in an unconstitutional sentence because the PSR's date of offense (February 10, 2002) was used, rather than the November 28...

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