UNITED STATES v. ARROYO RAYA (2018)

Jose Luis Arroyo-Raya appeals his 40-month upward variance sentence for illegal reentry after being previously removed following a felony conviction. He asserts that the district court committed plain error by including his prior Texas conviction for displaying a fictitious registration in the criminal history calculation. See U.S.S.G. § 4A1.2(c).

Considering the factors set out in United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991), we conclude that the issue of whether the Texas offense of displaying fictitious registration is sufficiently similar to the excludable offenses listed in § 4A1.2(c)(1) is, at best, subject to reasonable dispute. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Accordingly, if error occurred, it was neither clear nor obvious. See id.

The judgment of the district court is AFFIRMED.

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FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.