Filed: Oct. 07, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 7, 2005 Charles R. Fulbruge III Clerk No. 04-10448 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PEDRO ANTONIO LOPEZ-DELGADILLO, Defendant-Appellant. - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:02-CR-226-ALL-A - Before JONES, WIENER, and DeMOSS, Circuit Judges. PER CURIAM:* Pedro Antonio Lopez-Delgadill
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 7, 2005 Charles R. Fulbruge III Clerk No. 04-10448 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PEDRO ANTONIO LOPEZ-DELGADILLO, Defendant-Appellant. - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:02-CR-226-ALL-A - Before JONES, WIENER, and DeMOSS, Circuit Judges. PER CURIAM:* Pedro Antonio Lopez-Delgadillo..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 7, 2005
Charles R. Fulbruge III
Clerk
No. 04-10448
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO ANTONIO LOPEZ-DELGADILLO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-226-ALL-A
--------------------
Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Pedro Antonio Lopez-Delgadillo appeals the sentence imposed
following his guilty-plea conviction of being found in the United
States, without permission, following his conviction of an
aggravated felony and subsequent deportation. See 8 U.S.C.
§ 1326(a), (b). Lopez-Delgadillo did not raise his appellate
arguments in the district court. Accordingly, this court will
review the issues for plain error only. United States v. Olano,
507 U.S. 725, 732-35 (1993).
*
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opinion should not be published and is not precedent except under the limited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.
Construed liberally, Lopez-Delgadillo first argues that the
district court should have treated his 1996 conviction of
possession of a controlled substance and his 1999 conviction of
delivery of a controlled substance as “related” for purposes of
calculating his criminal history points under the United States
Sentencing Guidelines. He notes that the terms of probation
imposed against him in each of those cases were revoked at the same
hearing and the revocation sentences were ordered to run
concurrently. Lopez-Delgadillo’s argument lacks merit. See United
States v. Kates, 174 F.3d 580, 584 (5th Cir. 1999). Moreover, the
district court did not commit plain error in calculating Lopez-
Delgadillo’s criminal history points. See U.S.S.G. §§ 4A1.1 and
4A1.2.
Lopez-Degadillo next argues that the 96-month term of
imprisonment imposed in his case is excessive and violates the
Eighth Amendment prohibition against cruel and unusual punishment.
Measured against the Rummel v. Estelle, 445 U.S. 263 (1980),
benchmark, however, Lopez-Degadillo’s sentence is not grossly
disproportionate to his offense and does not violate the Eighth
Amendment.
Finally, Lopez-Delgadillo argues that the district court
committed plain error by sentencing him under the mandatory
Sentencing Guidelines scheme held unconstitutional in United States
v. Booker, 125 S. Ct. 738 (2005). Lopez-Delgadillo has satisfied
the first two prongs of the plain error analysis by showing that
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the district court committed error that was plain. See United
States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005).
However, he has not satisfied the third prong of the plain error
analysis by showing that the error affected his substantial rights.
See
id. at 600-01.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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